Federal Register Vol. 81, No.133,

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc. Model CL-600-2B19 (Regional Jet Series 100 & 440), Model CL-600-2C10 (Regional Jet Series 700, 701, & 702), Model CL-600-2D15 (Regional Jet Series 705), Model CL-600-2D24 (Regional Jet Series 900), and Model CL-600-2E25 (Regional Jet Series 1000) airplanes. The NPRM published in the Federal Register on April 14, 2016 (81 FR 22037) (“the NPRM”). The NPRM was prompted by reports of undesirable changes in the RAS Bug, occurring during flight without pilot input. The NPRM proposed to require replacing the FCC. We are issuing this AD to prevent uncommanded pitch changes, which could result in deviation from a safe flight path.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2016-02, dated January 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 CL-600-2B19 (Regional Jet Series 100 & 440), Model CL-600-2C10 (Regional Jet Series 700, 701, & 702), Model CL-600-2D15 (Regional Jet Series 705), Model CL-600-2D24 (Regional Jet Series 900), and Model CL-600-2E25 (Regional Jet Series 1000) airplanes. The MCAI states:

Uncommanded pitch changes, if not corrected, could result in deviation from a safe flight path. Corrective actions include replacing the FCC. 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-2016-5590.

We gave the public the opportunity to participate in developing this AD. We considered the comment received. The commenter supported the NPRM.

We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this AD as proposed.

We reviewed Bombardier Service Bulletin 601R-22-018, Revision A, dated November 3, 2015; and Service Bulletin 670BA-22-009, dated August 17, 2015. The service information describes procedures for replacing the FCCs. 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 1,008 airplanes of U.S. registry.

We estimate the following costs to comply with 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 by adding an AD that would apply to certain Airbus Model A330-200 Freighter series airplanes; Model A330-200 and A330-300 series airplanes; Model A340-200 and A340-300 series airplanes; Model A340-500 series airplanes; and Model A340-600 series airplanes. The NPRM published in the Federal Register on March 1, 2016 (81 FR 10545) (“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 2015-0008, dated January 15, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A330-200 Freighter series airplanes; Model A330-200, and A330-300 series airplanes; Model A340-200, and A340-300 series airplanes; Model A340-500 series airplanes; and Model A340-600 series airplanes. The MCAI states:

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-2016-3983.

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.

Delta Airlines (DAL) requested that the requirement to modify the RAT actuator in paragraphs (g)(2) and (g)(3) of the proposed AD be changed from “modify the RAT actuator” to “replace the RAT actuator.” DAL stated that operators cannot ensure that the removed RAT actuator would be modified by the RAT manufacturer by the compliance time specified in the proposed AD.

We agree to provide clarification regarding the requirement to modify the RAT actuator, but we do not agree with the commenter's request to change “modify” to “replace.” The modification procedures described in the Accomplishment Instructions of the Airbus service information specified in paragraphs (g)(2), (g)(3), (h)(2), and (h)(3) of this AD include more than just a modification. The modification procedures in the Airbus service information state to (1) remove the actuator from the RAT, (2) send the removed actuator to Hamilton Sundstrand, and (3) install the modified actuator on the RAT and re-identify the part number.

We also agree that operators do not have control over how long it would take Hamilton Sundstrand to modify the actuator, or if the modification could be completed prior to the applicable compliance times in this AD. Therefore, we have revised paragraphs (g)(2), (g)(3), (h)(2), and (h)(3) of this AD by removing the word “modify” and replacing it with “remove the actuator from the RAT, install a modified actuator, and re-identify the RAT . . . .”

DAL requested that paragraph (g) of the proposed AD be revised to include a statement that a review of airplane maintenance records is acceptable to determine the supplier, part number, and serial number of the installed RAT actuators if the supplier, part number, and serial number can be conclusively determined from that review. DAL stated that it has already modified airplanes in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-29-3126, dated June 12, 2014, and it tracks the on-wing identification of these RAT components. DAL indicated that allowing operators to review airplane maintenance records to determine the supplier, part number, and serial number of the installed RAT actuators would prevent unnecessary work.

We do not agree with the commenter's request. One of the actions included in the requirement to determine the supplier, part number, and serial number of an installed RAT actuator is looking at the actuator's identification plate. An inspection of the RAT actuator is necessary to determine if the identification plate is present. Paragraphs (g)(3) and (h)(3) of this AD require certain actions if the identification plate of a RAT actuator is missing. We have not changed this AD regarding this issue.

DAL requested that the references to Hamilton Sundstrand Service Bulletin ERPS06M-29-21, dated May 27, 2014, be changed to ERPS06M-29-21, Revision 1, dated April 14, 2015. DAL noted that the revised service information updates the identification procedures for the RAT actuators, among other changes.

We agree with the commenter that all references to Hamilton Sundstrand Service Bulletin ERPS06M-29-21, dated May 27, 2014, should be changed to ERPS06M-29-21, Revision 1, dated April 14, 2015, in this final rule. We have made this change in the “Related Service Information under 1 CFR part 51” section in the preamble and paragraphs (g)(1), (g)(2), (g)(3), and (j) of this AD. We have also included a new paragraph (k) in this AD to provide credit for actions done prior to the effective date of this AD using Hamilton Sundstrand Service Bulletin ERPS06M-29-21, dated May 27, 2014. The subsequent paragraphs have been redesignated accordingly.

DAL noted that the “Related ADs” section of the NPRM preamble, and paragraphs (b) and (i) of the proposed AD, referred to AD 2015-26-02, Amendment 39-18350 (80 FR 81174, December 29, 2015) (“AD 2015-26-02”), which was superseded by AD 2016-04-01, Amendment 39-18395 (81 FR 8134, February 18, 2016) (“AD 2016-04-01”). DAL suggested that the references to AD 2015-26-02 be removed and replaced with references to AD 2016-04-01.

We agree with the commenter's suggestion. The “Related ADs” section of the NPRM is not restated in this final rule, but we have revised paragraphs (b) and (i) of this AD to refer to AD 2016-04-01.

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.

Airbus has issued the following service information, which describes procedures for identifying the supplier, part number, and serial number of the installed RAT actuator; modifying the RAT; and re-identifying the RAT actuator and RAT.

• Service Bulletin A330-29-3126, dated June 12, 2014.

• Service Bulletin A340-29-4097, dated June 12, 2014.

• Service Bulletin A340-29-5025, dated June 16, 2014.

Hamilton Sundstrand has issued Service Bulletins ERPS06M-29-21, Revision 1, dated April 14, 2015; and ERPS33T-29-7, dated June 6, 2014. This service information describes procedures for identifying the affected RAT actuator and RAT part numbers and serial numbers, modifying affected actuators, and re-identifying affected RAT actuators and RATs.

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 84 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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 by adding an AD that would apply to certain Dassault Aviation Model FALCON 7X airplanes. The NPRM published in the Federal Register on March 1, 2016 (81 FR 10535) (“the NPRM”).

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued Airworthiness Directive 2015-0204, dated October 8, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Dassault Aviation FALCON 7X airplanes. The MCAI states:

A bore is not satisfactory if it has any surface defects greater than or equal to 0.5 mm or if any chamfer dimension or edge distance value is not within the dimensions specified in Dassault Aviation Service Bulletin 7X-346, dated April 24, 2015. 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-2016-3987.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM or on the determination of the cost to the public.

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD with the changes described previously except for 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 Dassault Service Bulletin 7X-346, dated April 24, 2015. The service information describes procedures for a one-time inspection and repair of the bores on stiffeners at Frame 41 on the engine pylons.

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 55 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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 2014-14-06, Amendment 39-17901 (79 FR 42655, July 23, 2014) (“AD 2014-14-06”). AD 2014-14-06 applied to all Model A318-111 and -112 airplanes; Model A319-111, -112, -113, -114, and -115 airplanes; Model A320-111, -211, -212, and -214 airplanes; and Model A321-111, -112, -211, -212, and -213 airplanes. The NPRM published in the Federal Register on September 17, 2015 (80 FR 55798) (“the NPRM”). The NPRM was prompted by inspection results that have shown that the main cause of crack initiation in the aft engine mount retainers is the vibration dynamic effect that affects both retainers, either with “dull” or “bright” surface finishes. The NPRM proposed to continue to require inspecting the aft engine mount retainers for surface finish, cracks, and failure, and replacement if necessary. The NPRM also proposed to require repetitive inspections for damaged, cracked broken, and missing aft engine mount retainers, and replacement if necessary. We are issuing this AD to detect and correct failure of retainer brackets of the aft engine mount and consequent loss of the locking feature of the nuts of the inner and outer pins; loss of the pins will result in the aft mount engine link no longer being secured to the aft engine mount.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0021, dated February 13, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition. The MCAI states:

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-2015-3632.

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.

Delta Airlines (DAL) requested that we revise paragraph (m) of the NPRM to approve use of a boroscope with 10X magnification when performing the inspection of the center aft engine mount inner retainer as an option to removing the center retainer. DAL stated that this procedure was allowed by the FAA in Alternative Method of Compliance (AMOC) ANM-116-14-423, dated September 16, 2014, for AD 2014-14-06. DAL stated that this procedure provides an equivalent level of safety since the detectability of the subject condition using this alternate inspection method is the same as a detailed visual inspection using 10X magnification, mirror, and light.

We disagree with DAL's request. AMOC ANM-116-14-423, dated September 16, 2014, provides an AMOC for replacing 10X magnification, mirror, and light with a boroscope with 10X magnification but that AMOC is not an option to removing the center retainer. However, under the provisions of paragraph (q)(1) of this AD, we will consider requests for approval of alternative procedures, if sufficient data are submitted to substantiate that the change would provide an acceptable level of safety. We have not changed this AD in this regard.

We have clarified in paragraph (q)(1)(ii) of this AD that AMOCs approved previously for AD 2014-14-06, are approved as AMOCs for the corresponding provisions of paragraphs (g) and (i) of this AD.

DAL requested that we permit use of later approved revisions of the service information. DAL stated that Airbus has released Airbus Service Bulletin A320-71-1060, Revision 01, dated April 7, 2015.

We partially agree with DAL's request. We do not agree to include an allowance for later approved revisions of the referenced service information. When referring to a specific service document in an AD, using the phrase, “or later FAA-approved revisions,” violates the Office of the Federal Register's regulations for approving materials that are incorporated by reference. See 1 CFR 51.1(f).

However, affected operators may request approval to use a later revision of the referenced service document as an alternative method of compliance, under the provisions of paragraph (q)(1) of this AD. We have not changed this AD in this regard.

We agree to reference to Airbus Service Bulletin A320-71-1060, Revision 01, dated April 7, 2015, in this final rule as the appropriate source of service information for accomplishing the actions required by paragraphs (l) and (m) of this AD (referred to as paragraphs (m) and (n) in the proposed AD).

We have also redesignated paragraph (l) of the proposed AD to paragraph (p)(1) of this AD (the paragraph retains existing credit information) and added new paragraphs (p)(2) and (p)(3) of this AD to provide provisional credit for Airbus Service Bulletin A320-71-1060, dated October 9, 2014. For operators to obtain credit for Airbus Service Bulletin A320-71-1060, dated October 9, 2014, for the replacement, operators must use the torque value units applicable to nut item (14) specified in Airbus Service Bulletin A320-71-1060, Revision 01, dated April 7, 2015. Those torque value units were incorrectly stated in Airbus Service Bulletin A320-71-1060, dated October 9, 2014.

We reviewed the available data, including 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 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.

Airbus has issued Service Bulletin A320-71-1060, Revision 01, dated April 7, 2015. This service information describes procedures for inspecting the aft engine mount retainers for surface finish (dull or bright), for damaged, cracked, broken, or missing retainers, and replacement.

Goodrich Aerostructures has issued Service Bulletin RA32071-160, dated September 18, 2014. This service information describes procedures for inspecting the aft engine mount inner retainers for cracks or failure, and replacement.

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 922 airplanes of U.S. registry.

The actions required by AD 2014-14-06, and retained in this AD, take about 3 work-hours per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are were required by AD 2014-14-06 is $255 per inspection cycle per product (for two engines).

We also estimate that it would take about 10 work-hours per product to comply with the basic requirements of this AD, and 1 work-hour per product to report inspection findings. 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 $862,070, or $935 per product.

In addition, we estimate that any necessary follow-on actions would take about 2 work-hours and require parts costing $10,000, for a cost of $10,170 per product. We have no way of determining the number of airplanes that might need these actions.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.

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 2015-10-03, Amendment 39-18158 (80 FR 30608, May 29, 2015) (“AD 2015-10-03”). AD 2015-10-03 applied to certain Airbus Model A330-200 and -300 series airplanes, and Model A340-200 and -300 series airplanes. The NPRM published in the Federal Register on January 21, 2016 (81 FR 3346) (“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 2015-0079, dated May 7, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A330-200 and -300 series airplanes, Model A340-200 and -300 series airplanes, and Model A340-541 and -642 airplanes. The MCAI states:

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

American Airlines (AA) requested that we use the latest service information in the NPRM. AA stated that since the NPRM was issued, Airbus released Service Bulletin A330-32-3269, Revision 01, dated December 3, 2015.

We agree with the commenter for the reasons stated above. We have reviewed Airbus Service Bulletin A330-32-3269, Revision 01, dated December 3, 2015, and there are no substantial changes. In addition, we have also reviewed Airbus Service Bulletin A340-32-4301, Revision 01, dated December 3, 2015; and Airbus Service Bulletin A340-32-5115, Revision 01, dated December 11, 2015. There are no substantial changes. We have revised this AD accordingly.

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

Airbus has issued the following service information:

The service information describes procedures for a detailed inspection of the upper cardan pin and nut threads for any corrosion, pitting, or thread damage, and replacement of the cardan pin and nut. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

We also estimate that it will take about 11 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 $88,825, or $935 per product.

In addition, we estimate that any necessary follow-on actions will take about 12 work-hours and require parts costing $78,136, for a cost of $79,156 per product. We have no way of determining the number of aircraft that might need this action.

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 by adding an AD that would apply to certain Bombardier, Inc. Model CL-600-2B16 (CL-604 Variant) airplanes. The NPRM published in the Federal Register on January 4, 2016 (81 FR 32) (“the NPRM”). The NPRM was prompted by a determination that certain maintenance tasks for the HSTA are inadequate. The NPRM proposed to require revising the maintenance or inspection program, as applicable, to incorporate new airworthiness limitations for the HSTA. We are issuing this AD to detect and correct premature wear and cracking of the HSTA, which could result in failure of the HSTA and consequent loss of control of the airplane.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2014-30, dated September 5, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc. Model CL-600-2B16 (CL-604 Variant) airplanes. The MCAI states:

The unsafe condition is premature wear and cracking of the HSTA, which could result in failure of the HSTA and consequent loss of control of the airplane.

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-2015-8129.

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

Bombardier Inc., asked that we change the contact information to include the telephone numbers and email address for the Widebody Customer Response Center. Bombardier Inc. provided the updated information.

We agree with the commenter. We have changed the contact information in this AD accordingly.

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

• Are consistent with the intent that was proposed in the NPRM 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.

Bombardier Inc. has issued the following service information, which describes procedures for revising the maintenance or inspection program to incorporate new airworthiness limitations for the HSTA.

• Section 5-10-40, Certification Maintenance Requirements, of Part 2, Airworthiness Limitations, of the Bombardier Challenger 604 Time Limits/Maintenance Checks Manual, Revision 22, dated July 11, 2014.

• Section 5-10-40, Certification Maintenance Requirements, of Part 2, Airworthiness Limitations, of the Bombardier Challenger 605 Time Limits/Maintenance Checks Manual, Revision 10, dated July 11, 2014.

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 78 airplanes of U.S. registry.

We also estimate that it takes about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $6,630, or $85 per product.

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:

Paperwork Reduction Act

The collection of information contained in these final and temporary regulations will be reviewed and, pending receipt and evaluation of public comments, approved by the Office of Management and Budget under control number 1545-2268.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

For further information concerning this collection of information, please refer to the preamble to the cross-referencing notice of proposed rulemaking published in the Proposed Rules section of this issue of the Federal Register.

Books and records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.

This Treasury decision contains temporary regulations under section 506 of the Code. Section 405 of the Protecting Americans from Tax Hikes Act of 2015 (Pub. L. 114-113, div. Q) (the PATH Act), enacted on December 18, 2015, added section 506 to the Code and amended sections 6033 and 6652. Because the statutory provisions were effective upon enactment and certain section 501(c)(4) organizations must notify the IRS within 60 days of formation, these temporary regulations are necessary to provide prompt guidance to enable section 501(c)(4) organizations to satisfy the new statutory notification requirement and provide appropriate transition relief.

Section 501(a) of the Code generally provides that an organization described in section 501(c) is exempt from federal income tax. Section 501(c)(4) describes certain civic leagues or organizations operated exclusively for the promotion of social welfare and certain local associations of employees. An organization is described in section 501(c)(4) and exempt from tax under section 501(a) if it satisfies the requirements applicable to such status. Subject to certain exceptions, section 6033, in part, requires organizations exempt from taxation under section 501(a) to file annual information returns or notices, as applicable.

Although an organization may apply to the IRS for recognition that the organization qualifies for tax-exempt status under section 501(c)(4), there is no requirement to do so (except as provided in section 6033(j)(2), which requires organizations that lose tax-exempt status for failure to file required annual information returns or notices and want to regain tax-exempt status to apply to obtain reinstatement of such status). Accordingly, a section 501(c)(4) organization that files annual information returns or notices, as required under section 6033, need not seek an IRS determination of its qualification for tax-exempt status in order to be described in and operate as a section 501(c)(4) organization.

Section 405(a) of the PATH Act added section 506 to the Code, requiring an organization to notify the IRS of its intent to operate as a section 501(c)(4) organization. In addition, section 405(b) and (c) of the PATH Act amended sections 6033(f) and 6652(c), relating to information that section 501(c)(4) organizations may be required to include on their annual information returns and penalties for certain failures by tax-exempt organizations to comply with filing or disclosure requirements, respectively.

Section 506(a) requires a section 501(c)(4) organization, no later than 60 days after the organization is established, to notify the Secretary of the Department of the Treasury (Secretary) that it is operating as a section 501(c)(4) organization (the notification). Section 506(b) provides that the notification must include: (1) The name, address, and taxpayer identification number of the organization; (2) the date on which, and the state under the laws of which, the organization was organized; and (3) a statement of the purpose of the organization. Section 506(c) requires the Secretary to send the organization an acknowledgment of the receipt of its notification within 60 days. Section 506(d) permits the Secretary to extend the 60-day notification period for reasonable cause. Section 506(e) provides that the Secretary shall impose a reasonable user fee for submission of the notification. Section 506(f) provides that, upon request by an organization, the Secretary may issue a determination with respect to the organization's treatment as a section 501(c)(4) organization and that the organization's request will be treated as an application for exemption from taxation under section 501(a) subject to public inspection under section 6104.1

In addition, the PATH Act amended section 6033(f) to require a section 501(c)(4) organization submitting the notification to include with its first annual information return after submitting the notification any additional information prescribed by regulation that supports the organization's treatment as a section 501(c)(4) organization.

The PATH Act also amended section 6652(c) to impose penalties for failure to submit the notification by the date and in the manner prescribed in regulations. In particular, section 6652(c)(4)(A) imposes a penalty on an organization that fails to submit the notification equal to $20 per day for each day such failure continues, up to a maximum of $5,000. Additionally, section 6652(c)(4)(B) imposes a similar penalty on persons who fail to timely submit the notification in response to a written request by the Secretary.

Section 405(f) of the PATH Act provides that, in general, the requirement to submit the notification and the related amendments to sections 6033 and 6652 apply to section 501(c)(4) organizations that are established after December 18, 2015, the date of enactment of the PATH Act. Section 405(f)(2) of the PATH Act provides that these provisions also apply to any other section 501(c)(4) organizations that had not, on or before the date of enactment of the PATH Act: (1) Applied for a written determination of recognition as a section 501(c)(4) organization (using Form 1024, “Application for Recognition of Exemption Under Section 501(a)”); or (2) filed at least one annual information return or notice required under section 6033(a)(1) or (i) (that is, a Form 990, “Return of Organization Exempt From Income Tax,” or, if eligible, Form 990-EZ, “Short Form Return of Organization Exempt From Income Tax,” or Form 990-N (e-Postcard)). Organizations described in section 405(f)(2) of the PATH Act must submit the notification within 180 days after the date of enactment of the PATH Act.

The Treasury Department and the IRS issued Notice 2016-09 (2016-6 IRB 306 (February 8, 2016)) to provide interim guidance regarding section 405 of the PATH Act. Specifically, Notice 2016-09 extended the due date for submitting the notification until at least 60 days from the date that implementing regulations are issued in order to provide adequate transition time for organizations to comply with the new requirement to submit the notification. Notice 2016-09 further stated that no penalties under section 6652(c)(4) would apply to a section 501(c)(4) organization that submits the notification by the due date provided in the regulations.

With respect to the separate procedure by which an organization may request a determination from the IRS that it qualifies for tax-exempt status under section 501(c)(4), Notice 2016-09 stated that organizations seeking IRS recognition of section 501(c)(4) status should continue using Form 1024 until further guidance is issued. Notice 2016-09 also clarified that the filing of Form 1024 does not relieve an organization of the requirement to submit the notification. The Treasury Department and the IRS received a public comment in response to Notice 2016-09, which was considered in drafting these temporary regulations.

The temporary regulations prescribe the manner in which an organization must notify the IRS, consistent with section 506, that it is operating as a section 501(c)(4) organization. In addition, the temporary regulations clarify that the submission of the notification does not constitute a request by an organization for a determination from the IRS that it qualifies for tax-exempt status.

The IRS has developed a new electronic form, Form 8976, “Notice of Intent to Operate Under Section 501(c)(4),” for use by organizations submitting the notification. In accordance with section 506(a), the temporary regulations generally require a section 501(c)(4) organization to submit the notification to the IRS on Form 8976 (or its successor) no later than 60 days after the date the organization is organized. The Form 8976 must be submitted in accordance with the form and its instructions.

Consistent with section 506(b), the temporary regulations specify that the notification must include: (1) The name, address, and taxpayer identification number of the organization; (2) the date on which, and the state or other jurisdiction under the laws of which, the organization was organized; and (3) a statement of the purpose of the organization. In addition, the temporary regulations provide that the notification must include such additional information as may be specified in published guidance in the Internal Revenue Bulletin or in other guidance, such as forms or instructions, issued with respect to the notification. To ensure that the statutorily required items of information in the notification are correlated accurately within existing IRS systems, Form 8976 requires organizations to provide their annual accounting period.

The temporary regulations also provide that the notification must be accompanied by payment of the reasonable user fee authorized by section 506(e), which will be set forth by published guidance in the Internal Revenue Bulletin or in other guidance, such as forms or instructions, issued with respect to the notification. Consistent with section 506(d), the temporary regulations state that the 60-day period for submitting the notification may be extended for reasonable cause.

Further, the temporary regulations provide that, within 60 days after receipt of the notification, the IRS will send the organization an acknowledgment of such receipt. The temporary regulations clarify that this acknowledgment is not a determination with respect to tax-exempt status. Thus, it is not a determination on which an organization may rely or a determination or a failure to make a determination with respect to which the organization may seek declaratory judgment under section 7428. For further information regarding the interaction of the section 506 notification requirement with the separate procedure by which an organization may request an IRS determination that it qualifies for tax-exempt status under section 501(c)(4), see section 5 of this Explanation of Provisions.

Finally, the temporary regulations provide that additional guidance on the procedures for submitting the notification may be provided in published guidance in the Internal Revenue Bulletin or in other guidance, such as forms or instructions, issued with respect to the notification. On July 8, 2016, the IRS released Rev. Proc. 2016-41, 2016-30 IRB xxxx, which provides additional information on the procedure for submitting the Form 8976.

A public comment submitted in response to Notice 2016-09 suggested that section 506(a) should not apply to foreign organizations that do not conduct significant activities (other than investment activities) in the United States, even if the organizations may be required to submit a Form 990 to the IRS. As the commenter notes, foreign section 501(c)(4) organizations generally are required to file an annual information return or notice with the IRS under section 6033. See Rev. Proc. 2011-15, § 3 (2011-3 IRB 322). Section 506(a) does not include an exception from the requirement to submit the notification for foreign section 501(c)(4) organizations. The Treasury Department and the IRS have determined that the regulations should not create such an exception because the requirement to submit the notification is intended to replace the former practice under which section 501(c)(4) organizations (both domestic and foreign) might not notify the IRS that they claim section 501(c)(4) status until they file a Form 990 return or notice. Accordingly, the temporary regulations clarify that a section 501(c)(4) organization must submit the notification whether it is organized in the United States or outside the United States. However, a foreign organization may be eligible for relief from penalties under section 6652 if it submits the notification promptly after first commencing activities or receiving income that would cause it to have a filing requirement under section 6033. Rev. Proc. 2016-41 includes an example to illustrate the availability of this relief.

Under section 405(f)(2) of the PATH Act, the requirement to submit the notification does not apply to certain organizations that notified the IRS of their existence on or before December 18, 2015. The Treasury Department and the IRS recognize that, since the enactment of the PATH Act but before the availability of the new electronic Form 8976 for submitting the notification, additional section 501(c)(4) organizations may have notified the IRS of their existence by applying for a written determination of tax-exempt status or filing a required annual information return or notice. Accordingly, to reduce the burden on these organizations and the IRS, the temporary regulations provide relief from the requirement to submit the notification for any section 501(c)(4) organization that, on or before July 8, 2016, either: (1) Applied for a written determination of recognition as a section 501(c)(4) organization (using Form 1024); or (2) filed at least one annual return or notice required under section 6033(a)(1) or (i) (that is, a Form 990 or, if eligible, Form 990-EZ or Form 990-N).

In order to allow adequate transition time for organizations that do not qualify for this transition relief to submit the notification in the manner prescribed by these regulations, the temporary regulations provide that an organization that was organized on or before July 8, 2016, will have until September 6, 2016, which is 60 days from the date that the regulations are filed with the Federal Register, to submit the notification.

For information on the applicable penalties for failure to submit the notification, the temporary regulations refer to section 6652(c)(4), which imposes penalties on the organization and on persons who fail to timely submit the notification in response to a written request by the Secretary, as well as section 6652(c)(5), which provides a reasonable cause exception, and section 6652(c)(6), which provides other special rules that generally apply for purposes of section 6652(c) penalties.

Under section 6652(c)(5), no penalty will be imposed with respect to a failure to submit the notification if it is shown that such failure is due to reasonable cause. Rev. Proc. 2016-41 addresses reasonable cause for abating a section 6652(c)(4) penalty.

Under section 6652(c)(6), the section 6652(c)(4)(B) penalty imposed on “persons” who fail to timely submit the notification in response to a written request by the Secretary applies to any officer, director, trustee, employee, or other individual who is under a duty to submit the notification. In addition, under section 6652(c)(6), if more than one person is liable for the section 6652(c)(4)(B) penalty, all such persons will be jointly and severally liable with respect to the failure to submit the notification.

Section 506(f) provides that an organization subject to the section 506 notification requirement may request a determination to be treated as an organization described in section 501(c)(4). This indicates that the procedure by which an organization may request a determination that it is described in section 501(c)(4) is separate from the procedure for submitting the notification. Accordingly, the temporary regulations provide that submission of the notification does not constitute a request for an IRS determination that the organization qualifies for tax-exempt status under section 501(c)(4). Rather, an organization that seeks IRS recognition of tax-exempt status under section 501(c)(4) must separately request a determination in the manner prescribed in Revenue Procedure 2016-5, or its successor.

If an organization receives a determination from the IRS recognizing tax-exempt status, the organization's application, supporting papers, and final determination letter are open to public inspection under section 6104(a)(1) and (d). The notification, by contrast, is not open for public inspection because it is not an application within the meaning of section 6104.

Section 6033(f)(2), as amended by the PATH Act, provides that the IRS may require an organization that submits the notification to include additional information in support of the organization's treatment as an organization described in section 501(c)(4) on the first Form 990 or 990-EZ, as applicable, filed by the organization after submitting the notification. The temporary regulations do not prescribe any additional information to be reported on Form 990 or 990-EZ at this time. The IRS will monitor the notification process to determine whether additional information is needed.

For copies of recently issued revenue procedures, revenue rulings, notices, and other guidance published in the Internal Revenue Bulletin, please visit the IRS Web site at http://www.irs.gov.

Certain IRS regulations, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory assessment is not required. It has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. For applicability of the Regulatory Flexibility Act, please refer to the cross-referencing notice of proposed rulemaking published in the Proposed Rules section of this issue of the Federal Register. Pursuant to section 7805(f) of the Code, these regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

The principal author of these regulations is Chelsea R. Rubin, Office of Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from the Treasury Department and the IRS participated in their development.

Accordingly, 26 CFR parts 1 and 602 are amended as follows:

Background

The final and temporary regulations (TD 9768) that are the subject of this correction are under sections 3511, and 7705 of the Internal Revenue Code.

As published, the final and temporary regulations (TD 9768) contains an error that may prove to be misleading and is in need of clarification.

Accordingly, the final and temporary regulations (TD 9768), that are the subject of FR Doc. 2016-10700, are corrected as follows:

1. On page 27320, in the preamble, the third column, the fourth line from the top of the footnote, the language “by chapter 23 of Code, the IRS expects to evaluate” is corrected to read “by chapter 23 of the Code, the IRS expects to evaluate”.

Viewing Items Associated With This Document

To view OMB's approval memo or the Cargo Securing Manuals interim rule, go to www.regulations.gov, type the docket number, USCG-2000-7080, in the “SEARCH” box and click “SEARCH.” Click on “Open Docket Folder” in the first item listed. Use the following link to go directly to the docket: http://www.regulations.gov/#!docketDetail;D=USCG-2000-7080.

On May 9, 2016, the Coast Guard published an interim rule (81 FR 27992) that implemented cargo securing manual requirements. Part 97, subpart A, and § 160.215 of 33 CFR and 46 CFR 97.12-10 in that rule contain collection-of-information provisions that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520. On June 23, 2016, the OMB approved the Coast Guard's collection of information request for this interim rule and assigned OMB Control Number 1625-0122 to the new collection entitled, Cargo Securing Manuals. The approval for this collection of information expires on June 30, 2019.

This document is issued under the authority of 5 U.S.C. 552(a).

I. Table of Abbreviations

CFR Code of Federal Regulations

DHS Department of Homeland Security

NPRM Notice of Proposed Rulemaking

§ Section

U.S.C. United States Code

On December 27, 2015, the Bucksport Marina notified the Coast Guard that it will sponsor a series of drag boat races from noon to 7 p.m. on August 13, 2016 and August 14, 2016. In response, on April 6, 2016, the Coast Guard published a notice of proposed rulemaking titled Bucksport/Southeastern Drag Boat Summer Championship, Atlantic Intracoastal Waterway; Bucksport, SC. There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this special local regulation. During the comment period that ended May 6, 2016, we received no comments.

The legal basis for the rule is the Coast Guard's authority to establish special local regulations: 33 U.S.C. 1233. The purpose of the rule is to insure safety of life on navigable waters of the United States during the two days of drag boat races.

As noted above, we received no comments on our NPRM published April 6, 2016. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

On August 13, 2016 and August 14, 2016, Bucksport Marina will host a series of drag boat races on the Atlantic Intracoastal Waterway in Bucksport, South Carolina during the Bucksport/Southeastern Drag Boat Summer Championship. Approximately 75 powerboats are anticipated to participate in the races and approximately 35 spectator vessels are expected to attend the event. This rule establishes a special local regulation on certain waters on the Atlantic Intracoastal Waterway in Bucksport, South Carolina. The special local regulation will be enforced daily from noon until 7 p.m. on August 13, 2016 and August 14, 2016.

Except for those persons and vessels participating in the drag boat races, persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within any of the race areas unless specifically authorized by the Captain of the Port Charleston or a designated representative. Persons and vessels desiring to enter, transit through, anchor in, or remain within any of the race areas may contact the Captain of the Port Charleston by telephone at (843)740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the race areas is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative. The Coast Guard will provide notice of the regulated areas by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

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 rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by Executive Order 13563, Improving Regulation and Regulatory Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of Executive Order 12866 or under section 1 of Executive Order 13563. The Office of Management and Budget has not reviewed it under those Orders.

The economic impact of this rule is not significant for the following reasons: (1) Non-participant persons and vessels may enter, transit through, anchor in, or remain within the regulated area during the enforcement periods if authorized by the Captain of the Port Charleston or a designated representative; (2) vessels not able to enter, transit through, anchor in, or remain within the regulated area without authorization from the Captain of the Port Charleston or a designated representative may operate in the surrounding areas during the enforcement period; (3) the Coast Guard will provide advance notification of the special local regulation to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners; and (4) the safety zone will impact only a small designated area of the Atlantic Intracoastal Waterway for the 2 days of August 13, and 14, 2016 from noon to 7 p.m., and thus is limited in time and scope.

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.

This rule may affect the following entities, some of which may be small entities: the owner or operators of vessels intending to enter, transit through, anchor in, or remain within the regulated area during the enforcement period. For the reasons discussed in Regulatory Planning and Review section above, this rule will not have a significant economic impact on a substantial number of small entities.

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 regulation issued in conjunction with a regatta or marine parade. This rule 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. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

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

I. Table of Abbreviations COTP Captain of the Port CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register LIS Long Island Sound NPRM Notice of Proposed Rulemaking NAD 83 North American Datum 1983 II. Background Information and Regulatory History

This rulemaking establishes three special local regulations for two swim events and one fireworks display. Each event and its corresponding regulatory history are discussed below.

The Jones Beach State Park Fireworks is a recurring marine event with regulatory history. This recurring event is codified in Table 1 to 33 CFR 165.151 (7.19). The Coast Guard is using a Special Local Regulation for this event due to a determination that a safety zone will be insufficient to mitigate the event's extra and unusual hazards this year.

The Mystic Sharkfest Swim is a recurring marine event with regulatory history. A special local regulation was established in 2015 for the Mystic Sharkfest Swim event when the Coast Guard issued a temporary rule entitled, “Special Local Regulation; Mystic Sharkfest Swim; Mystic River; Mystic, CT.”

Island Beach Two Mile Swim is a recurring marine event with regulatory history. A special local regulation was established for this event on July 29, 2015 via a temporary final rule entitled, “Special Local Regulations; Marine Events held in the Sector Long Island Sound Captain of the Port Zone.” This rule was published on August 13, 2015 in the Federal Register (80 FR 48436).

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM with respect to this rule because doing so would be impracticable. There is insufficient time to publish an NPRM, take public comments, and issue a final rule before these events take place. Thus, waiting for a comment period to run would inhibit the Coast Guard's mission to keep the ports and waterways safe.

Under 5 U.S.C. 553(d)(3), and for the same reasons stated in the preceding paragraph, the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register.

The legal basis for this temporary rule is 33 U.S.C. 1233.

The COTP Sector LIS has determined that the special local regulations established by this temporary final rule are necessary to provide for the safety of life on navigable waterways during these events.

This rule establishes three special local regulations for two swim events and one fireworks show. The locations of these regulated areas are as follows:

This rule establishes additional vessel movement rules within areas specifically under the jurisdiction of the special local regulations during the periods of enforcement unless authorized by the COTP or designated representative.

We developed this rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 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. The Coast Guard determined that this rulemaking is not a significant regulatory action for the following reasons: (1) The enforcement of these regulated areas will be relatively short in duration, (2) persons or vessels desiring entry into the “No Entry” areas or a deviance from the stipulations within the “Slow/No Wake Areas” may be authorized to do so by the COTP Sector Long Island Sound or designated representative, may do so with permission from the COTP Sector LIS or a designated representative; (3) vessels can operate within the regulated area provided they do so in accordance with the regulation and (4) before the effective period, public notifications will be made to local mariners through appropriate means, which may include the Local Notice to Mariners as well as Broadcast Notice to Mariners.

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

While some owners or operators of vessels intending to transit these regulated areas 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.

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 proposed rule or any policy or action of the Coast Guard.

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This temporary rule involves the establishment of three regulated areas. 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 will be available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

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

Coast Guard District Commanders and Captains of the Port (COTP) must be immediately responsive to the safety and security needs within their jurisdiction; therefore, District Commanders and COTPs have been delegated the authority to issue certain local regulations. Safety zones may be established for safety or environmental purposes. A safety zone may be stationary and described by fixed limits or it may be described as a zone around a vessel in motion. Security zones limit access to prevent injury or damage to vessels, ports, or waterfront facilities. Special local regulations are issued to enhance the safety of participants and spectators at regattas and other marine events. Drawbridge operation regulations authorize changes to drawbridge schedules to accommodate bridge repairs, seasonal vessel traffic, and local public events. Regulated Navigation Areas are water areas within a defined boundary for which regulations for vessels navigating within the area have been established by the regional Coast Guard District Commander.

Timely publication of these rules in the Federal Register may be precluded when a rule responds to an emergency, or when an event occurs without sufficient advance notice. The affected public is, however, often informed of these rules through Local Notices to Mariners, press releases, and other means. Moreover, actual notification is provided by Coast Guard patrol vessels enforcing the restrictions imposed by the rule. Because Federal Register publication was not possible before the end of the effective period, mariners were personally notified of the contents of these safety zones, security zones, special local regulations, regulated navigation areas or drawbridge operation regulations by Coast Guard officials on-scene prior to any enforcement action. However, the Coast Guard, by law, must publish in the Federal Register notice of substantive rules adopted. To meet this obligation without imposing undue expense on the public, the Coast Guard periodically publishes a list of these temporary safety zones, security zones, special local regulations, regulated navigation areas and drawbridge operation regulations. Permanent rules are not included in this list because they are published in their entirety in the Federal Register. Temporary rules are also published in their entirety if sufficient time is available to do so before they are placed in effect or terminated.

The following unpublished rules were placed in effect temporarily during the period between September 2013-March 2016 unless otherwise indicated. To view copies of these rules, visit www.regulations.gov and search by the docket number indicated in the list below.

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security E.O. Executive Order FR Federal Register NPRM Notice of proposed rulemaking SNPRM Supplemental notice of proposed rulemaking Pub. L. Public Law §  Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard twice published a notice of proposed rulemaking to adjust when the draw of the Metro-North WALK Bridge will be available to open Monday through Friday, excluding holidays. In response to comments received to the notice of proposed rulemaking (NPRM), published in August 2015 (80 FR 52423), the Coast Guard conducted further review of tidal data, bridge logs and train schedules.

On April 4, 2016, we published a supplemental notice of proposed rulemaking (SNPRM) entitled Drawbridge Operation Regulation; Norwalk River, Norwalk, CT, in the Federal Register (81 FR 19094), soliciting comments on the proposed rule through May 4, 2016. In addition, Commander (dpb), First Coast Guard District published Public Notice 1-150 dated April 4, 2016. We received two comments on the proposed rule, which will be addressed in Section IV, below.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 499.

The Metro-North WALK Bridge, mile 0.1, across the Norwalk River at Norwalk, CT, has a vertical clearance in the closed position of 16 feet at mean high water and 23 feet at mean low water. The drawbridge operation regulations are listed at 33 CFR 117.217(b). The waterway users are seasonal recreational vessels and commercial vessels of various sizes. The owner of the bridge, Connecticut Department of Transportation (CDOT), requested a change to the Drawbridge Operation Regulations because the volume of train traffic across the bridge during the peak commuting hours makes bridge openings impractical under the current schedule. As a result, bridge openings that occur during peak commuter train hours cause significant delays to commuter rail traffic.

The Coast Guard believes these final changes balance the needs of rail and vessel traffic. The proposed changes enhance rail traffic without significantly impacting vessel traffic.

We received two submissions commenting on the SNPRM. One comment requested that any modification to the existing rule should not be extended past the initiation of construction of a new replacement bridge. The Coast Guard disagrees. A replacement bridge is only in the planning stage at CDOT. Design and construction of a replacement project for a bridge of this scale typically takes several years. As the timeline of a potential bridge replacement is uncertain, the Coast Guard cannot consider it within this rulemaking.

One comment suggested the Coast Guard consider revising the AM peak window to end at 8:45 a.m. and revising the PM peak window to begin at 4:15 p.m. and end at 8:20 p.m. to better accommodate commuters. The Coast Guard believes that the proposed rule offers greater consideration to peak commuter train traffic by restricting bridge openings until 9:45 a.m. The Coast Guard also believes that the PM peak revision of the proposed rule more adequately addresses the concerns in the comment by offering an additional 15 minutes on the front end by restricting bridge openings starting at 4 p.m. In addition, while the train schedules do adjust twice annually, only one train crosses the bridge between 8 p.m. and 8:20 p.m. Therefore, the Coast Guard believes ending the restriction to bridge openings at 8 p.m. is sufficient. The proposed changes balance the needs of rail and vessel traffic, enhancing rail traffic without significant adverse impact to vessel traffic.

The Coast Guard amends 33 CFR 117.217(b) as proposed in the SNPRM of April 4, 2016.

We developed this rule after considering numerous statutes and executive orders (E.O.s) related to rulemaking. Below we summarize our analyses based on a number of these statutes and E.O.s, and we discuss First Amendment rights of protesters.

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

This regulatory action determination is based on the ability that vessels can still transit the bridge given advanced notice. The vertical clearance under the bridge in the closed position is relatively high enough to accommodate most vessel traffic during the time periods the draw is closed during the morning and evening commuter rush hours.

The Regulatory Flexibility Act of 1980 (RFA), 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 rule. 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 bridge may be small entities, for the reasons stated in section V.A above this final rule would 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, above.

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 calls for no 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 E.O. 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.

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 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 guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule simply promulgates the operating regulations or procedures for drawbridges. This action is categorically excluded from further review, under figure 2-1, paragraph (32)(e), of the Instruction.

Under figure 2-1, paragraph (32)(e), of the Instruction, an environmental analysis checklist and a categorical exclusion determination are not required for this rule.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a NPRM with respect to this rule because publishing a NPRM would be impracticable. A delay or cancellation of the currently ongoing bridge project in order to accommodate a full notice and comment period would delay necessary operations, result in increased costs, and delay the date when the bridge is expected to reopen for normal operations. For these reasons, the Coast Guard finds it impracticable to delay this regulation for purposes of a comment period.

We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be impracticable for the same reasons specified above.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP has determined that the potential hazards associated with the LEFT COAST LIFTER's cable and anchor system create a serious safety concern for anyone transiting within a 200-yard radius of the LEFT COAST LIFTER during heavy lift operations. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while constructing the New NY Bridge and demolishing the existing Tappan Zee Bridge.

Construction on the Tappan Zee Bridge replacement project began on October 1, 2013. Heavy lift operations to install the new bridge superstructure over the Hudson River have presented new safety hazards and risks to vessels transiting the area due to the Left Coast Lifter's crane barge four-point anchor and cable system deployed while lifting heavy loads over the navigable waters of the Hudson River. The anchor and cable system extends outward from the crane barge, up to 200 yards, in four varying directions, at various heights above, and below, the water surface of the Hudson River. This presents a risk to mariners who may become entangled in the anchor cable system if they transit too close to the crane barge. We believe that a safety zone is needed to protect mariners during this period of construction.

This rule establishes a safety zone from June 22, 2016, through December 31, 2018. The safety zone will cover all navigable waters of the Hudson River within 200 yards of the crane barge LEFT COAST LIFTER. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during heavy lift operations. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on the size, location, and duration of the safety zone. The implementation of this temporary safety zone is necessary for the protection of all waterway users. The size of the zone is the minimum necessary to provide adequate protection for the waterway users, adjoining areas, and the public. Vessel traffic will be able to safely transit around this safety zone. Any hardships experienced by persons or vessels are considered minimal compared to the interest in protecting the public.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that will prohibit entry within 200 yards of the crane barge LEFT COAST LIFTER during heavy lift operations. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination will be available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that Web site's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

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

Executive Summary

Gathering and removing plants or plant parts is currently prohibited in National Park System areas unless specifically authorized by federal statute or treaty rights or conducted under the limited circumstances authorized by an existing regulation codified at 36 CFR 2.1(c).

This rule authorizes the National Park Service (NPS) to enter into agreements with federally recognized Indian tribes to allow for the gathering and removal of plants or plant parts from National Park System areas for traditional purposes. Only enrolled members of a federally recognized tribe will be allowed to collect plants or plant parts, and the tribe must be traditionally associated with the specific park area. This traditional association must predate the establishment of the park. The plant gathering must meet a traditional purpose that is a customary activity and practice rooted in the history of the tribe and is important for the continuation of the tribe's distinct culture. Authorized plant gathering must be sustainable and may not result in a significant adverse impact on park resources or values. The sale and commercial use of plants or plant parts within areas of the National Park System will continue to be prohibited by NPS regulations at 36 CFR 2.1(c)(3)(v).

This rule does not affect any existing statutory or treaty right to gather plants within areas of the National Park System.

Before gathering may occur within a park area, an Indian tribe must submit a written request to the park Superintendent for an agreement to allow tribal members to collect plants or plant parts. After a request is made, the Superintendent has 90 days to acknowledge receipt of the request and initiate consultation with the tribe. If the Superintendent does not initiate consultation within 90 days, then the tribe may submit the request to the Regional Director. If all of the criteria for entering into an agreement are met, the Superintendent will begin negotiations with the tribe for a gathering agreement in consultation with any other tribe that has gathering rights under treaty or federal statute or is party to a valid plant-gathering agreement with the NPS for that area. The NPS must prepare an environmental assessment meeting the requirements of the National Environmental Policy Act of 1969 (NEPA). If the proposed gathering would have a significant adverse impact on the environment, then the NPS will not authorize it. The NPS must prepare a finding of no significant impact before any plant gathering agreement may become effective. All plant-gathering agreements must contain the specific elements set forth in the rule and must receive the concurrence of the Regional Director, and all plant-gathering activities must be conducted in accordance with the terms and conditions of a special use permit issued by the Superintendent. The activities allowed by the permit must fall within the scope of activities agreed upon in the gathering agreement and analyzed in the environmental assessment.

The NPS will provide guidance to the park areas and participating tribes about how to implement this rule. Model agreements, templates, and other documents may be a part of the guidance, including suggestions for baseline documentation and monitoring protocols for gathering activities in each park area.

The NPS has a unique relationship with Indian tribes, which is strengthened by a shared commitment to stewardship of the land and resources. This relationship is augmented by the historical, cultural, and spiritual relationships that Indian tribes have with the park lands and resources with which they are traditionally associated.

Indian tribes practiced their traditional harvests of plants and plant parts on or from lands that are now included in areas of the National Park System long before the arrival of European settlers. Much of this activity is currently prohibited by NPS regulations in 36 CFR part 2. The fundamental purpose of this rule is to relax this prohibition in limited circumstances to allow traditional gathering and removal of plants or plant parts while ensuring that there is no significant adverse impact to park resources and values.

Cooperation in the continuation of tribal traditions is at the heart of this rule. The NPS has a long history of encouraging Indian arts and crafts in national parks for the education and enjoyment of the public, and to support the continued practice of cultural traditions. The teaching and sharing of tribal traditions associated with national parks is an important part of the NPS mission. The rule provides new opportunities for the NPS and tribal governments to work together in support of the continuation of sustainable Indian cultural traditions that make up a unique and irreplaceable part of our national heritage.

The NPS has allowed limited gathering by hand of certain renewable natural resources since at least 1960. See 36 CFR 1.2(c) and 2.10(b) (1960) (allowing visitors to “pick and eat . . . such native fruits and berries as the superintendent may designate” in most NPS-administered areas and authorizing the superintendent of a national recreation area to “permit the collection or removal of natural objects,” respectively). In 1966 the NPS expanded this authority for NPS-administered recreational areas, allowing the gathering or collecting for personal use of reasonable quantities of natural, renewable products (e.g., seashells, fruits, berries, driftwood, and marine deposits of natural origin). 31 FR 16650, 16654 (1966). Existing NPS regulations at 36 CFR 2.1(c), promulgated in 1983, allow for the personal use or consumption of “fruits, berries, nuts, or unoccupied seashells” by the general public, subject to certain conditions.

Existing NPS regulations at 36 CFR 2.1(d) do not allow tribal members to gather plants or plant parts in park areas for ceremonial or religious purposes, except where federal statutes or treaties grant rights to do so. Traditional tribal gathering and removal, however, occurred in many areas that are now part of the National Park System, and not all of these activities are authorized by treaty or federal statute. This rule provides an orderly and consistent process to allow limited gathering and removal of plants or plant parts for traditional purposes under agreements between the NPS and federally recognized Indian tribes.

Over the past 20 years, studies in ethnobotany and traditional plant management, along with consideration of traditional ecological knowledge in scientific symposia and scholarly gatherings, have increased greatly. Research findings have shown that traditional conservation of plant species includes gathering and management techniques as well as social and cultural rules for avoiding over-exploitation (Berkes 2012; Blackburn and Anderson 1993; Anderson 2005; Deur and Turner 2005). Traditional gathering is carried out in ways that ensure plant replacement and abundance by using specific harvest criteria and foraging and cultivation strategies (Anderson 1993; Turner and Peacock 2005). The example of Pomo basketry and the husbandry and gathering of sedge plants to ensure continuing quality and quantity of basketry supplies is well known (Peri and Patterson 1976), and other wild plant species necessary for basket making such as willow and fern are managed similarly through harvesting, burning, and cultivation techniques (Ortiz 1993). Wild plant species used for food have been managed for thousands of years by native groups using specific gathering techniques to maximize both harvest and sustainability (McCarthy 1993; Farris 1993; Parlee and Berkes 2006), and the general management of landscapes and ecosystems by native peoples have been well documented (e.g. Hammett 2000; Nabhan 2000).

Research has shown that traditional gathering, when done with traditional methods (i.e., by hand, without power tools) and in traditionally customary quantities, may help to conserve plant communities. Hand tools—for example, rakes, sticks, and knives—were the dominant means used by tribes to harvest plants in the past. Limiting plant harvesting to hand tools (those not powered by fossil fuels or electricity) limits secondary auditory and visual impacts of plant gathering. In addition, hand tools are consistent with activities that are allowed in areas that are categorized as eligible, study, proposed, recommended, or designated wilderness. A definition of “traditional gathering” has been added to the rule to clarify that gathering activities may be conducted only using hand tools.

This rule is consistent with NPS Management Policies 2006 (Management Policies) 4.2.1, the agency's top-tier written policy guidance, which directs the NPS to inventory, monitor, and research traditional knowledge and authorizes the NPS to support studies designed to understand the traditional resource management practices of Native Americans. The NPS Cultural Anthropology Program has engaged in research on traditional ecological knowledge and indigenous resource management for over 20 years. A recent example is centered on Sleeping Bear Dunes National Lakeshore in Michigan, where tribal members of the Grand Traverse Band of Ottawa and Chippewa Indians, the Little Traverse Bay Bands of Odawa Indians, and the Little River Band of Ottawa Indians helped to document the presence of culturally significant Odawa plant species and the specifics of cultural use (Stoffle et al. 2015). The NPS and tribal governments can draw on this research and may conduct further research to ensure that traditional tribal gathering and removal does not have a significant adverse impact on park resources or values. To the extent that it is appropriate and does not compromise tribal traditional knowledge, park visitors may also learn about the cultures associated with traditional tribal gathering practices.

This rule requires that the NPS comply with all applicable federal laws, including NEPA, before entering enter into an agreement that will allow gathering and removal of plants or plant parts in a National Park System area. These environmental reviews will document how the proposed traditional gathering activities may affect particular species of plants in ecosystems and locations within a park area.

What is commonly known as the NPS Organic Act, as amended and supplemented, established what is now the NPS and directed the Secretary of the Interior, acting through the NPS, to “promote and regulate the use of the National Park System by means and measures that conform to the fundamental purpose of the System units, which purpose is to conserve the scenery, natural and historic objects, and wild life in the System units and to provide for the enjoyment of the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.” 54 U.S.C. 100101(a). The NPS Organic Act further authorizes the Secretary to prescribe “such regulations as the Secretary considers necessary or proper for the use and management of [National Park] System units.” 54 U.S.C. 100751(a).

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951); Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” of November 6, 2000; President Obama's Executive Memorandum on Tribal Consultation of November 5, 2009; Department of the Interior Secretarial Order No. 3317 of December 1, 2011, and Department of the Interior Departmental Manual Part 512, “American Indian and Alaska Native Programs;” the NPS has evaluated the potential effects of this rule on federally recognized Indian tribes and has determined that it has direct tribal implications.

The NPS held six tribal consultation meetings in the “Lower 48” regarding this rule. NPS regional and park staff consulted with Indian tribes to select meeting locations in or near areas of the National Park System where gathering by tribal members has been discussed. One hundred and fifty representatives from 50 tribes attended meetings held from May through July 2010, in Bar Harbor, Maine; Flagstaff, Arizona; Pipestone, Minnesota; Yurok, California; Suquamish, Washington; and Cherokee, North Carolina. An additional meeting was held at Pipestone, Minnesota, in September 2010. Staff in Alaska contacted more than 70 federally recognized Indian tribes traditionally associated with parks in Alaska. Consultation then occurred with those tribes that requested it. Additionally, general presentations were given at two statewide conventions: The Alaska Tribal Leaders Summit in Fairbanks during the annual meetings of the Alaska Federation of Natives in October 2010 and the annual Bureau of Indian Affairs Providers Conference in Anchorage in December 2010. A conference call with traditional elders and tribal people not representing tribal governments was conducted in June 2010 at the request of Arvol Looking Horse, Keeper of the Sacred White Buffalo Calf Pipe of the Lakota, Dakota, and Nakota Nation of the Sioux. Park managers and staff attended these consultation meetings and participated in the discussions. The major concerns of representatives of tribal governments and the NPS are summarized and addressed here.

Tribal representatives supported the concept that only enrolled members of federally recognized Indian tribes be allowed to gather and remove park resources for traditional purposes. This rule limits gathering and removal of plants or plant parts to members of an Indian tribe or Alaska Native tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian tribe under the Federally Recognized Tribe List Act of 1994, 25 U.S.C. 479a. This requirement limits gathering and removal to members of Indian tribes with which the United States has a government-to-government relationship. Other groups that may be traditionally associated with park areas, including non-federally recognized tribes and Native Hawaiian groups, do not have the same legal and political relationship with the United States and therefore this rule does not extend to such groups. If a group later becomes federally recognized, the rule would then extend to it. The rule provides avenues for cooperative NPS-tribal government oversight of member activities on park lands to ensure that traditional gathering and removal remains sustainable with no significant adverse impacts to park resources or values, consistent with Management Policies 8.2.

A central purpose of the rule is to support the continuation of Indian cultural traditions on lands that are now administered as areas of the National Park System. The rule allows gathering only by members of Indian tribes traditionally associated with specific park areas. Respecting the special and longstanding connections that Indian tribes have with parklands prior to the establishment of park areas is specifically acknowledged in Management Policies 1.11, which states that the “formal legal rationale for the relationship between the NPS and tribes is augmented by the historical, cultural, and spiritual relationships that American Indian tribes have with park lands and resources.” The NPS believes there are approximately 433 federally-recognized tribes that may be traditionally associated with locations within approximately 215 areas of the National Park System. The NPS does not know, and has no way to estimate, how many of those tribes will be interested in entering into gathering agreements under this rule.

The NPS and tribal representatives supported agreements between tribal governments and the NPS to establish the conditions for gathering in park areas. These agreements will respect both tribal sovereignty and the NPS's authority to manage park resources and will authorize traditional tribal gathering in ways that may be administered flexibly to respond to local resource concerns. The participating tribal government will be responsible for designating which tribal members may gather in accordance with the terms and conditions set forth in the agreement and the subsequently issued special use permit.

Tribal representatives expressed deep concern for the long-term health of park ecosystems. Reminding the NPS of their long history of productive and protective relationships with such ecosystems, they expressed willingness to accept limitations on gathering to protect park resources. Although not required by this rule, NPS and tribal representatives may use this opportunity to develop park-specific plant gathering management plans to ensure the long-term health of any park resource that may be gathered. These plans would be in addition to the environmental review documents that are required by this rule and NEPA.

Tribal representatives stressed that each Indian tribe is unique and that tribal agreements entered into under the rule should allow for traditional cultural practices specific to each tribe.

Tribal representatives expressed that some national park areas contain places where tribal members historically have gathered plant resources. Using a particular gathering site within a national park area may be vital to the continuation of a cultural tradition that cannot be met at locations outside the park, or even at alternative locations within it. Thus, even though some plants or plant parts may be available outside park lands, tribal members may still reasonably desire to gather at traditionally significant locations inside a park area. The rationale for in-park gathering of plants or plant parts that are also available outside park boundaries must be documented on a case-by-case basis under § 2.6(d) of the rule. The information used to make this determination may be subjected to peer review by qualified specialists from both the tribal and academic communities.

Tribal representatives expressed the desire to work with the NPS to create and maintain the knowledge base needed to manage gathering and removal and to leave park resources unimpaired for future generations. This may include joint research and monitoring, training programs for tribal members and park staff, and ongoing consultation regarding park resources.

Existing NPS regulations, promulgated in 1983, prohibit “possessing, destroying, injuring, defacing, removing, digging, or disturbing from its natural state” living or dead wildlife or fish, plants, paleontological specimens, or mineral resources, or the parts or products of any of these items, except as otherwise provided in NPS regulations. 36 CFR 2.1. The new rule, to be codified at 36 CFR 2.6, creates an exception to current regulations by authorizing resource- and location-specific agreements between the NPS and federally recognized Indian tribes to gather and remove plants or plant parts for traditional purposes.

Plants or plant parts gathered under this rule may not be used for “benefits sharing,” which allows for the commercial use of research results derived from material collected in a park area through the specimen collection permit procedures in 36 CFR 2.5. See Management Policies 4.2.4.

This rule does not affect 36 CFR 2.1(c)(1), which allows a park Superintendent to designate certain fruits, berries, nuts, or unoccupied seashells that may be gathered by hand for personal use and consumption, subject to a determination that the gathering or consumption will not adversely affect park wildlife, the reproductive potential of a plant species, or otherwise adversely affect park resources.

This rule amends § 2.1(d), which now states that “[t]his section [36 CFR 2.1] shall not be construed as authorizing the taking, use or possession of fish, wildlife, or plants for ceremonial or religious purposes, except where specifically authorized by federal statutory law, treaty rights or in accordance with § 2.2 [wildlife protection] or § 2.3 [fishing].” This rule authorizes the gathering and removal of plants or plant parts for traditional purposes under NPS-tribal agreements but does not alter the prohibition on taking, using, or possessing fish or wildlife for such purposes.

In many of the National Park System units in Alaska, 36 CFR 13.35 regulates the gathering and collection of natural products and allows for the limited gathering of a wider range of natural products than are included in this rule. Except for the four park areas 1 listed in § 13.35(a), § 13.35(c) allows gathering, by hand and for personal use only, of renewable resources like natural plant food items (e.g., fruits, berries, and mushrooms) that are not threatened or endangered species; driftwood and uninhabited seashells; and plant materials and minerals that are essential to the conduct of traditional ceremonies by Native Americans. This rule has no practical effect within these units in Alaska where § 13.35(c) applies, because this rule allows for a more limited scope of collection than does the Alaska-specific regulation. The rule applies to the park areas in Alaska listed in § 13.35(a) and to parks in the remainder of the United States. The rule does not address subsistence activities that are authorized in Alaska by 36 CFR 13.400-13.495.

On April 20, 2015, the NPS published the proposed rule in the Federal Register (80 FR 21674). The rule was open for public comment for 90 days, until July 20, 2015. The NPS reopened the comment period from August 12 through September 28, 2015 (80 FR 48280). The NPS invited comments through the mail and the Federal eRulemaking Portal at http://www.regulations.gov.

The NPS received 90 pieces of correspondence with comments on the proposed rule: 37 from federally recognized tribes, 40 from private citizens, 10 from non-profit organizations, and three from state governments. In general, the comments fell into the following categories:

A summary of comments and NPS responses is provided below followed by a table that lists changes the NPS has made in the final rule based on comment analysis and other considerations.

1. Comment: Several comments questioned the NPS's authority to promulgate the rule, asserting that the NPS Organic Act precludes the NPS from allowing any “consumptive” uses of park resources like the gathering and removal of plants or plant parts.

NPS Response: The NPS Organic Act, as amended and supplemented, directs the NPS “to conserve the scenery, natural and historic objects, and wild life” in areas of the National Park System. 54 U.S.C. 100101(a). The conservation mandate in the Organic Act does not mean, however, that the NPS must preserve every individual member of every species of plant and animal and every rock, mineral, and other inorganic feature in a park area. Likewise, it does not mean that the NPS may not authorize members of the public to collect, gather, or consume certain park resources under carefully circumscribed conditions. Indeed, the NPS has long interpreted the conservation mandate in the Organic Act to allow the limited collection, gathering, or consumption of specifically identified park resources as long as the impacts from those activities do not result in the impairment of park resources or values.

For example, as mentioned above, the NPS has allowed the limited gathering by hand of certain renewable natural resources in park areas for personal use or consumption since at least 1960,2 an activity currently authorized under 36 CFR 2.1(c).3 The NPS has also allowed recreational fishing in park areas since at least 1943,4 an activity currently authorized under 36 CFR 2.3. NPS regulations also allow the taking of plants, fish, wildlife, rocks, and minerals pursuant to a specimen collection permit, which may be issued for the purpose of research, baseline inventories, monitoring, impact analysis, group study, or museum display. 36 CFR 2.5. The NPS believes that the gathering and removal activities authorized by this rule, conducted in accordance with the terms and conditions of the NPS-tribal gathering agreements and the NPS-issued special use permits that will implement those agreements, constitute a limited and appropriate (albeit consumptive) use of park resources that will not result in the impairment of those resources.

The fact that Congress has in certain instances explicitly directed the Secretary to allow the gathering or consumption of park resources by members of American Indian tribes 5 does not call into question the NPS's discretionary authority to promulgate this rule under the authority of the NPS Organic Act. On the contrary, those park-specific statutes reflect Congress's awareness that the NPS's now-longstanding regulatory limitation on the taking, use, or possession of fish, wildlife, or plants for ceremonial or religious purposes in 36 CFR 2.1(d) 6 has had a negative impact on tribes and traditional tribal cultural practices and its recognition that allowing traditional uses of park resources is an issue of great importance to federally recognized Indian tribes (as well as to the United States government). Accordingly, Congress acted to nullify the NPS's regulatory provision in those specific instances. Congress's actions, however, do not imply that the NPS lacks discretionary authority under the NPS Organic Act to modify its general regulatory scheme to better address and accommodate tribal interests and concerns throughout the National Park System.

This rule is also consistent with written guidance interpreting the NPS Organic Act that is contained in the Management Policies, the agency's top-tier written policy guidance. As discussed above, the NPS has long understood that the mandate in the Organic Act to avoid impairment does not mean a mandate to avoid all impacts to park resource or values. The policies expressly acknowledge that “virtually every form of human activity that takes place within a park has some degree of effect on park resources or values, but that does not mean the impact is unacceptable or that a particular use must be disallowed.” Management Policies 1.4.7.1. They also emphasize that the NPS Organic Act and other relevant statutes “give the [NPS] the management discretion to allow impacts to park resources and values when necessary and appropriate to fulfill the purposes of a park, so long as the impact does not constitute impairment of the affected resources and values.” Management Policies 1.4.3. The policies define impairment as:

In addition to impairment, the policies discuss the related concepts of “unacceptable impacts” to park resources or values and “appropriate use” of park areas. Unacceptable impacts “are impacts that fall short of impairment, but are still not acceptable within a particular park's environment,” Management Policies 1.4.7.1, and an appropriate use of a park area is one that is “suitable, proper, or fitting for a particular park, or to a particular location within a park.” Management Policies 1.5. Under the policies the NPS manager must determine which uses are appropriate in a particular location within the particular park area and may not allow unacceptable impacts to park resources or values.

If the traditional gathering and removal of certain plants or plant parts for traditional purposes by enrolled members of federally recognized Indian tribes that are traditionally associated with the park area is authorized and conducted in accordance with this rule, then the NPS believes that it is a suitable, proper, and fitting—and therefore appropriate—use of park resources. The rule defines “traditional association” as “a longstanding relationship of historical or cultural significance between an Indian tribe and a park area predating the establishment of the park area” and a “traditional purpose” as “a customary activity or practice that is rooted in the history of an Indian tribe and is important to the continuation of that tribe's distinct culture.” Under the rule a tribe that wishes to gather and remove plants or plant parts from a park area must provide certain information to the NPS about its traditional association with the park area, and the NPS must determine, based on all available information, that the tribe is in fact traditionally associated with the park area and is proposing to gather and remove plants or plant parts within the park area for a traditional purpose.

Helping tribes maintain traditional cultural practices through access to plants or plant parts in park areas where the tribe has a traditional association helps fulfill one of the purposes of the National Park System, as described in Management Policies 1.11:

The tribal gathering of plants or plant parts authorized by this rule is also consistent with Management Policies 8.9, which states that the NPS “generally supports the limited and controlled consumption of natural resources for traditional religious and ceremonial purposes and is moving toward a goal of greater access and accommodation.”

The NPS also believes that the elements of this rule, and the requirements embedded in them, will ensure that any gathering and removal activities authorized by the rule will not result in unacceptable impacts to, or impairment of, park resources or values. Requests for gathering activities that would result in unacceptable impacts or impairment will be denied. The safeguarding elements of the rule include:

The required agreement between the NPS and the tribe must include the elements listed in § 2.6(f) of the rule. These elements include:

• A description of the specific plants or plant parts that may be gathered and removed.

• Specification of the size and quantity of the plants or plant parts that may be gathered and removed.

• Identification of the times and locations at which the plants or plant parts may be gathered and removed.

• Identification of the methods that may be used for gathering and removal, which will be limited to gathering by hand without power tools.

• Protocols for monitoring gathering and removal activities and thresholds above which NPS and tribal management intervention will occur.

These contractual provisions will enable the NPS to monitor the severity, duration, and timing of any impacts from the gathering activities to prevent unacceptable impacts to, or impairment of, park resources or values.

In addition to the terms of the gathering agreement, gathering activities will be subject to the terms and conditions of a special use permit issued by the NPS to the tribe that will further ensure that gathering and removal of plants or plant parts do not cause unacceptable impacts to, or impair, park resources or values. The permit requirement will enable the NPS to modify the terms and conditions governing the collecting of plants or plant parts as circumstances change or new information comes to light. The permits will also identify the specific members of the tribe who are designated by the tribe to gather plants at a particular location within a park area. The NPS may not issue a permit unless it first determines that doing so is consistent with the criteria listed in 36 CFR 1.6(a). Finally, the rule allows the Superintendent to close any park area to gathering activities for various reasons, including the need to protect natural resources. These closures will apply notwithstanding the terms or any agreement or permit executed under the rule. The Superintendent may also suspend an agreement or permit if terms or conditions are violated or if unanticipated or significant adverse impacts occur.

This rule also requires the NPS to analyze the potential impacts of the proposed gathering and removal activities in accordance with the requirements of NEPA (by preparing an environmental assessment and a finding of no significant impact), the National Historic Preservation Act (NHPA), the Endangered Species Act (ESA), and other applicable laws. The NPS may allow gathering and removal activities only if, during that compliance process, it determines that the proposed activities will not result in a significant adverse impact on park resources or values.

Some comments suggested that that if Congress intended 54 U.S.C. 100101 to give the NPS discretion to allow plant gathering, it would have been unnecessary for Congress to grant the Secretary of the Interior specific authority in 54 U.S.C. 100752 “to provide for the destruction of such . . . plant life as may be detrimental to the use of any System unit.” The NPS believes that the latter statute is not relevant to this rule because by its own terms it concerns and authorizes management actions by the NPS or its agents or contractors; it does not apply to the consumptive use of park resources by members of the public. Rather, this rule falls under the broad discretionary authority granted to the NPS by 54 U.S.C. 100101(a) and 54 U.S.C. 100751(a). Moreover, 54 U.S.C. 100752 authorizes management actions directed at plants that the NPS has determined are “detrimental” to the use of a particular park area. Those management actions are often intended to eradicate plant species that are exotic or otherwise inimical to a park area. The tribal gathering authorized by this rule is not directed at “detrimental” plants. In any event, because of the requirements and safeguards built into this rule, the tribal gathering authorized by it will never result in the destruction or eradication of any plant species in a park area.

Finally, some comments stated that the Food, Conservation, and Energy Act of 2008 (Farm Bill) suggests that Congress must grant the NPS specific statutory authority to allow tribes to gather plants in NPS areas. The Farm Bill authorizes the U.S. Forest Service (USFS) to provide trees, portions of trees, or forest products from lands administered by the USFS to Indian tribes free of charge for noncommercial traditional and cultural purposes (25 U.S.C. 3055). As explained above, the NPS believes that the NPS Organic Act already grants it the discretionary authority to allow the limited consumptive use of plants or plant parts authorized by this rule.

In the proposed rule the NPS requested comment about how the NPS and the USFS can coordinate their separate processes for requesting approval to remove natural products from their adjacent lands. Some comments encouraged the NPS to adopt the USFS rule rather than create a rule specific to NPS areas. This the NPS may not do. The NPS and the USFS operate under significantly different statutory regimes. As a result, the gathering and removal of plants or plant parts from NPS lands must be governed by regulations and policies different from the regulations and policies that will govern the removal of trees, portions of trees, or forest products from adjacent USFS lands. Therefore, it is not possible for the NPS to simply adopt the USFS rule. Although the NPS will encourage its park managers to coordinate informally with the managers of nearby USFS lands to eliminate duplicative requests for information and to more efficiently accommodate tribal requests and concerns, Indian tribes must negotiate a gathering agreement with the NPS in addition to any requirements imposed by the USFS on its adjacent lands.

2. Comment: Many comments questioned the appropriateness of the NPS using a NEPA categorical exclusion for the promulgation of this rule. Additional comments requested that the NPS prepare a national environmental impact statement to assess the environmental impacts of the rule on all areas of the National Park System. Several comments stated that extraordinary circumstances listed in 43 CFR 46.215 exist and that a categorical exclusion therefore may not be used, per 43 CFR 46.205(c).

NPS Response: The Department of the Interior's regulations implementing NEPA state that regulations whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis, which will later be subject to the NEPA compliance process, are categorically excluded from the requirement to prepare an environmental assessment or an environmental impact statement. 43 CFR 46.210(i).

The only action occurring at this time is the publication of the rule. The only immediate result of this action will be that Indian tribes may submit to the NPS requests to enter into agreements. The specifics of those agreements and any implementing permits are not known at the time of adoption of the rule. The effects of these future potential actions cannot be analyzed now because they are too broad, speculative, and conjectural to be meaningfully evaluated. They can be evaluated only at the time of the negotiation of a gathering agreement between the NPS and the tribe.

The rule requires that before entering into a gathering agreement with an Indian tribe, the NPS must analyze potential impacts of the proposed gathering and removal under all applicable federal laws, including NEPA, and that the NEPA compliance process must conclude with a finding of no significant impact. All proposed gathering activities in particular park areas or locations will therefore be subjected to analysis through the NEPA compliance process, after the NPS has received enough information about those activities (e.g., Indian tribe, location, duration, plant species, timing) to conduct a meaningful analysis of potential impacts to the environment. This analysis will include impacts, including cumulative impacts, to relevant plant species that are gathered illegally in some park areas (such as ramps and ginseng, where appropriate). Any gathering activities that would cause a significant impact may not be authorized. The NPS accordingly expects that parks will not prepare any environmental impact statements under this rule.

The NPS has reviewed the extraordinary circumstances listed in 43 CFR 46.215 and has confirmed that none apply to this action.

3. Comment: Several comments questioned whether the NPS adequately consulted with tribes prior to the publication of the proposed rule, and some comments requested the NPS redo consultation with all individual tribes with face-to-face meetings.

NPS Response: The NPS held six consultation meetings across the country to discuss the proposed rule. All federally recognized tribes located in the 48 contiguous states received invitations to attend one or more of these meetings. NPS staff in Alaska conducted consultation with tribal entities who requested it, and a telephone conference was requested and held. Any gathering agreements developed as a result of this rule will be established after consultation between the specific tribe and NPS staff at the relevant park. The NPS believes it has met its consultation requirements under Executive Order 13175 and the Department of Interior Consultation Policy and does not plan to hold any additional consultation meetings regarding the promulgation of this rule.

4. Comment: Many comments called for a more explicit statement of when and with whom consultation should occur before entering into a gathering agreement, and periodically during the term of the agreement.

NPS Response: Language has been added to the rule requiring park Superintendents to engage in a consultation process with any tribe requesting a gathering agreement both before finalizing the details of the agreement and during periodic reviews of the status of the gathering activities under the agreement. The number of meetings and length of the initial consultation process will vary by park and local circumstances, but park Superintendents will undertake the NPS consultation process with tribes as the mechanism for creating the agreements. This includes consultation with any tribes that have gathering rights under treaty that may be impacted by an agreement with another tribe. It is possible that periodic consultation will be called for and necessary during the life of the agreements, not just for their creation. It is also expected that consultation will be required for the periodic review of the gathering activity results and analysis of impacts. The gathering agreements should stipulate when such consultation will occur, while leaving open the possibility of additional ad hoc consultation as necessary.

5. Comment: Many comments noted that the process for requesting and entering into an agreement is burdensome to tribes. Some tribes noted they will need to negotiate and execute different agreements with different park areas. Other comments called for the process to be simplified, such as allowing any member of a tribe with a valid agreement to gather plants rather than requiring the tribes to provide the names of specific tribal members who may gather within the park. One comment noted that the process will be harder on smaller tribes with less staff to work on the process.

NPS Response: As explained in more detail above, the process for requesting and entering into a gathering agreement ensures that the gathering activities do not result in unacceptable impacts to park resources, particularly plants. Formal requests for gathering agreements, the terms of each gathering agreement, the environmental analyses required for each agreement, and the terms and conditions of each special use permit must be tailored to the unique biological conditions, resources, values, and enabling legislation for each park area. Requiring the permits to identify the members who are designated by the tribe to gather plants will allow the NPS to verify that a person gathering plants within the park is authorized to conduct that activity.

6. Comment: A number of comments suggested that the tribes, not the NPS, should permit plant gatherers and manage the process of gathering plants within park areas.

NPS Response: Congress delegated management responsibility for the National Park System to the NPS. Only the NPS has the legal authority to issue discretionary special use permits to authorize the gathering of plants or plant parts in areas of the National Park System. This rule does not apply to situations where a tribe has a legal right to gather plants or plant parts in the park area under a treaty or federal statute.

7. Comment: A number of comments stated that the overall process from initial request to permitting of gatherers is antithetical to traditional plant gathering practices, which is conducted primarily in private or with families and is based upon traditional knowledge that is not necessarily in written form or derived through a formal process that requires the submission of paperwork and formal determinations.

NPS Response: The rule establishes a fair and transparent process to allow plant gathering that requires deliberation, defines key terms and common language, and identifies actions that must be taken before gathering activities can occur. Although the process in this rule may run counter to traditional methods of gathering, the NPS believes the steps required by this rule are necessary to safeguard plant communities and the larger biological communities and processes, consistent with the NPS's statutory mandates to conserve the resources and values of the National Park System. The NPS believes that the documentation required by this rule will best ensure that impacts to park resources or values have been objectively and rigorously considered and that gathering activities comply with the terms and conditions agreed upon by the NPS and the tribes.

8. Comment: A number of comments suggested there should be a time limit for the NPS to answer a tribal request for a gathering agreement.

NPS Response: The NPS agrees there should be a time limit for an initial response from the park Superintendent, but the NPS also needs adequate time to review the merits of a request. The NPS has added a 90-day limit for a park Superintendent to initially respond to a tribe's request to enter into a plant gathering agreement. The time needed to enter into the agreement will not be subject to a deadline and will vary based on negotiations between the tribe and the NPS, and will be influenced by the resources, values, and other circumstances present at the park. The NPS believes that requiring a set amount of time for finalizing any agreement would be detrimental to the government-to-government consultation process, which should be given the time necessary to reach a conclusion.

9. Comment: A number of comments noted there was no conflict resolution or alternative dispute resolution section in the rule and that there should be some means for tribes to appeal NPS decisions.

NPS Response: The NPS has added an appeal process to the rule. If a Superintendent denies a tribe's request for a gathering agreement, then the Superintendent will provide the tribe with a written decision setting forth the reasons for the denial. The tribe may appeal the Superintendent's written decision to the NPS Regional Director within 60 days after receiving it. The appeal should set forth in writing the basis for the tribe's disagreement with the Superintendent's decision. Within 45 days after receipt of the tribe's written appeal, the Regional Director will affirm, reverse, or modify the Superintendent's decision, explaining the reasons for the appeal decision in writing, and promptly send a copy of the decision to the tribe. The Regional Director's appeal decision will constitute the NPS's final agency decision on the matter.

10. Comment: A number of comments asked who will monitor plant gathering and some suggested that tribes monitor plant gathering.

NPS Response: The rule requires that all gathering agreements contain protocols for monitoring gathering and removal activities, and thresholds above which NPS or tribal management intervention will occur. The NPS has on-going inventorying and monitoring projects for vascular plants in most park areas. Additionally, the NPS or other federal agencies may be monitoring federally threatened and endangered species in certain park areas. Tribes may request to join the NPS's efforts to monitor any effects of gathering of plant species on NPS-administered lands. Joint monitoring work will be agreed upon in the gathering agreement and may also be included in the terms and conditions of a special use permit.

11. Comment: Many tribes questioned the ability of the NPS to protect confidential information about who does the gathering and where the gathering occurs within a park area. These comments were based on a desire to prevent unauthorized people from collecting plants or plant parts and to protect the privacy of qualified plant gatherers as they participate in ceremonies associated with plant gathering.

NPS Response: During the process of consulting with tribes in order to enter into gathering agreements and to issue permits for gathering activities, the NPS may obtain information that the tribes consider sensitive or confidential, including the identity of tribal members who are authorized to gather plants or plant parts. As part of these consultations, the NPS will discuss ways to limit the scope of such information to the extent possible and to avoid releasing such information to the extent permitted by applicable laws. For example, in some circumstances NPS may be able to use identifiers other than personal names to designate tribal members who are authorized to gather plants or plant parts. To the extent permitted by applicable law, including 54 U.S.C. 100707, the Archaeological Resources Protection Act, and the NHPA, the NPS will withhold from public disclosure information about the specific location, character, and nature of resources on park lands.

12. Comment: Several comments felt that too much discretion is vested in the park Superintendent. For example, the rule states the Superintendent “may” negotiate and enter into an agreement with a tribe. The rule also allows the Superintendent to determine and document, based on information provided by the Indian tribe or others, that the Indian tribe has a traditional association with the park area, and that the Indian tribe is proposing to gather and remove plants or plant parts in the park area for a traditional purpose.

NPS Response: The discretionary authority granted to Superintendents recognizes that they are subject-matter experts regarding management of the park area and and have been delegated responsibility to take action and respond to changing circumstances that may affect the values and resources of a park area. The discretion granted to Superintendents is consistent with long-established discretionary authority granted to Superintendents in other sections of 36 CFR to make management decisions for NPS areas based upon a variety of criteria. The rule also requires Superintendents to obtain the written concurrence of the Regional Director to any agreement before it goes into effect. When reviewing formal requests for agreements and when determining whether the criteria have been met to enter into an agreement, Superintendents consult with the tribe and rely upon information provided by the tribe, as well as input and advice from NPS staff with subject matter expertise.

Superintendents will use all relevant forms of evidence made available to them to make a decision on traditional association, including oral history and evidence from the Indian Claims Commission.

13. Comment: Some comments requested that the Regional Director's role in agreements be circumscribed, while others requested the Regional Director's role be expanded in decision making.

NPS Response: NPS Regional Directors supervise park Superintendents. Requiring the Regional Director to concur before any agreement is signed ensures an important layer of review of decisions made by Superintendents that will help ensure that decision-making criteria are applied consistently across the regions of the National Park System. Regional Directors have regional staff that can assist park staff with the work required to negotiate gathering agreements and issue permits. The proposed rule required the Superintendent to obtain the Regional Director's written concurrence before issuing or terminating a permit. The NPS has removed this requirement in the final rule to allow Superintendents and Regional Directors to determine what type of permit review process is most appropriate for a particular park and region. The rule still requires the Regional Director to concur with all gathering agreements. Superintendents may not issue permits that authorize activities that exceed the scope of activities agreed to by the Regional Director in the gathering agreement.

14. Comment: A few comments asked the NPS to clarify the type of agreement that will be used, while others suggested the use of a Memorandum of Understanding (MOU) or Memorandum of Agreement (MOA).

NPS Response: Section 5.2.2 of the Management Policies directs the NPS to establish mutually beneficial agreements with interested groups to facilitate consultation and cooperative management approaches with respect to culturally important natural resources. The goal of such agreements is to allow traditionally associated peoples, such as tribes eligible to negotiate gathering agreements under this rule, to exercise traditional cultural practices in parks to the extent those practices are allowable by law, are appropriate uses for the park area, and will not cause unacceptable impacts or impairment.

The selection of a specific type of agreement depends upon what is agreed upon between the NPS and the tribe. For example, depending on the details of the arrangement, the NPS may use a memorandum of understanding, a memorandum of agreement, or a general agreement to document its relationship and agreement with the tribe. The type of agreement for plant gathering is best left to the consultation and negotiation process rather than specified in the rule.

15. Comment: A few comments believe the rule is too rigid and will preclude “opportunistic” plant gathering when a gatherer sees a plant they did not anticipate.

NPS Response: As explained in more detail above, the process for requesting and entering into a gathering agreement, and the requirement to obtain a permit for gathering activities, exist to ensure that the gathering activities do not result in unacceptable impacts to park resources, particularly plants. Opportunistic or spontaneous gathering of plants not identified in the gathering agreement and permit issued by the NPS will not be allowed. Tribal members may gather only plants or plant parts identified in the gathering agreement and permit, subject to the terms and conditions listed in the permit. An agreement and permit may be amended, however, to include additional plant species as explained in the response to the following comment.

16. Comment: A few comments asked if a gathering agreement could be amended at a later date.

NPS Response: An agreement may be amended if the proposed change is mutually agreed upon by the NPS and the tribe, concurred with by the Regional Director, and formally executed either as an amendment to the existing agreement or as an entirely new agreement. Adjustments to gathering activities that are consistent with an existing agreement will not require a new agreement and may be included in the terms and conditions of the special use permit issued by the NPS. Amendments or adjustments to gathering activities that are not within the scope of environmental impacts analyzed under NEPA when the original agreement was executed must be subject to additional environmental review prior to taking effect.

17. Comment: A number of comments suggested that all agreements should have a clause prohibiting the gathering of species listed as threatened or endangered under the ESA.

NPS Response: The NPS agrees and has modified the rule to require all agreements to prohibit the gathering of any species listed as threatened or endangered under the ESA. In addition the required environmental assessment should analyze whether to prohibit gathering activities in critical habitat for any species designated under the ESA and analyze any other plant species of special concern. The NPS will engage in consultation under Section 7 of the ESA if the environmental analyses required before entering into a gathering agreement identify potential adverse effects upon listed species or critical habitat.

18. Comment: A number of comments objected to the prohibition against any commercial use of plants or plant parts gathered under this rule. Comments generally agreed that there should be no sale of raw plants or plant parts. However, they requested that the NPS reconsider the use of limited quantities of plants and plant parts in the manufacture of traditional American Indian handicrafts.

NPS Response: The rule requires that gathering agreements contain a statement that the sale or commercial use of natural products is prohibited under existing NPS regulations at 36 CFR 2.1(c)(3)(v). This prohibition applies, like other NPS regulations, to activities occurring within the boundaries of areas of the National Park System, as described in 36 CFR 1.2. The NPS acknowledges that some tribal members may wish to use plants or plant parts gathered under this rule to make and sell traditional handicrafts such as baskets outside of the park area. This limited commercial use of plants or plant parts gathered in park areas may help tribes maintain traditional cultural practices, which is a primary purpose of this rule. Accordingly, this rule does not purport to regulate or prohibit this activity. The NPS will continuously monitor the impact of plant gathering on park resources and values and will adjust, through the permitting process, the quantity of plants or plant parts that may be gathered by tribal members in the park. If the use of plants or plant parts gathered in the park to make and sell traditional handicrafts begins to have an impact on park resources or values, then the NPS will curtail the authorized gathering activities accordingly.

19. Comment: Several comments referred to the possible abrogation or diminishment of, or infringement upon, existing treaty rights held by tribes to gather plants within NPS areas. Some comments identified concerns that plant gathering by members of a tribe operating under an agreement would negatively impact the ability of other tribes to exercise treaty rights to gather the same plant species.

NPS Response: This rule does not purport to abrogate, diminish, or regulate the exercise of treaty rights held by federally recognized Indian tribes, including any rights to gather plants or plant parts in NPS-administered park areas.

If the NPS determines that it is not sustainable to allow gathering under an agreement provided for in this rule and under a treaty, the rights to gather under treaty will take precedence over gathering under an agreement. It is possible that limits will need to be placed on gathering a particular plant species under an agreement to ensure that the activity is conducted in a sustainable manner. If the environmental analysis conducted prior to finalizing an agreement indicates that limits need to be stipulated, these limits will be included in the gathering agreement. If subsequent monitoring indicates an adverse impact to the species warranting additional limits, then the agreement can be amended to include those limits, or the additional limits can be placed in the permits issued for gathering activities. The rule also gives the Superintendent the authority to close park areas, or portions thereof, to gathering and removing plant species that are subject to gathering under an agreement and permit, in order to protect natural resources.

20. Comment: A few comments asked if the Tribal Self Governance Act could be employed to manage the plant gathering agreement at a park or as a method to substitute for the permit process.

NPS Response: Title II of the Indian Self-Determination Act Amendments of 1994 (Pub. L. 103-413, the “Tribal Self-Governance Act”) instituted a permanent self-governance program at the Department of the Interior. Under the self-governance program, certain programs, services, functions, and activities, or portions thereof, in Interior bureaus other than the Bureau Indian Affairs are eligible to be planned, conducted, consolidated, and administered by a tribe that has an executed self-governance compact with the Federal government. Under section 403(k) of the Tribal Self-Governance Act, funding agreements may not include programs, services, functions, or activities that are inherently federal or where the statute establishing the existing program does not authorize the type of participation sought by the tribe. The NPS believes that assessing the impacts of the gathering of plants or plant parts on park resources and values, negotiating an agreement with a tribe to gather plants or plant parts within a park area, and monitoring the impacts of the authorized gathering activities on park resources and values are inherently federal functions that are not eligible for inclusion in a self-governance funding agreement.

21. Comment: A number of comments noted there is a relationship between plant gathering areas in park areas and areas for which a Traditional Cultural Property (TCP) nomination would be appropriate or may already exist.

NPS Response: A TCP is a natural resource or area eligible for nomination to the National Register of Historic Properties under the NHPA. National Register eligibility criteria are distinct from the considerations and determinations under this rule. While some plant species have enhanced cultural significance because of their specific location, not every plant-gathering location will have enhanced cultural significance simply because the plants are found there. TCPs do not necessarily correlate with plant-gathering locations. The different purposes and eligibility requirements for TCP nominations under the NHPA make using the TCP process an unworkable substitute for the process for authorizing plant gathering under this rule.

After taking the public comments into consideration and after additional review, the NPS made the following substantive changes in the final rule:

The rule modifies the existing prohibition in this section on the taking, use, or possession of plants for ceremonial or religious purposes, by adding an exception for the gathering and removal of plants or plant parts by members of a federally-recognized Indian tribe in accordance with the requirements of this rule. The rule does not nullify or abrogate any existing statutory or treaty rights, nor does it affect rules governing the taking of fish or wildlife.

This section defines the following terms that are used in the rule: Indian tribe, Plants or plant parts, Traditional association, Traditional purpose, Traditional gathering, and Tribal official. The NPS added a definition to the final rule that defines “plants or plant parts” as vascular plants or parts of vascular plants. No other types of plants may be gathered or removed under this rule. The NPS added this definition to clarify that non-vascular plants such as bryophytes (e.g. mosses, lichens, and liverworts) and fungi (e.g. mushrooms) are not covered under this rule and may not be collected under a gathering agreement. There is limited historical evidence that non-vascular plants were used by tribes for traditional purposes. The primary use of non-vascular plants is commercial.

This section provides a summary of the process for authorizing a tribe to gather and remove plants or plant parts in a park area. The rule authorizes agreements to allow and manage tribal gathering and removal of plants or plant parts for traditional purposes in park areas. The agreements will explicitly recognize the special government-to-government relationship between Indian tribes and the United States, and will be based upon mutually agreed upon terms and conditions subject to the requirements of § 2.6(d). The agreements will serve as the framework under which the NPS will allow tribal gathering and removal and will be implemented by an accompanying permit issued by the NPS under § 1.6, which will authorize the gathering and removal activities.

This section explains how a tribe must request a gathering agreement from the NPS. The Superintendent will respond within ninety (90) days to a properly submitted request from the appropriate tribal official expressing interest in entering into an agreement for gathering and removal based on tribal traditional association with the park area, and on the continuation of traditional tribal cultural practices on park land. The tribal request must include a description of the traditional association that the Indian tribe has to the park area, a brief explanation of the traditional purposes to which the gathering and removal activities will relate, and a description of the gathering and removal activities that the Indian tribe is interested in conducting.

This section identifies criteria that must be met before the NPS will enter into a gathering agreement with a tribe. The rule requires the Superintendent to determine that the Indian tribe has a traditional association with the park area; determine that the Indian tribe is proposing to gather and remove plants or plant parts in the park area for a traditional purpose; analyze potential impacts of the proposed gathering activities under NEPA, NHPA, ESA, and other applicable laws; determine that the proposed gathering and removal activities will not result in a significant adverse impact on park resources or values; and determine that the agreement for the proposed gathering and removal meets the requirements for issuing a permit under 36 CFR 1.6(a).

This section explains that the Superintendent must deny a request from a tribe to enter into a gathering agreement if any of the criteria in pararaph (d) cannot be met.

This section explains that gathering agreements, at a minimum, must require that the tribal government identify who within the tribe is designated to gather and remove; how such individuals will be identified; what plants or plant parts may be gathered and removed; and limits on size, quantities, seasons, or locations where the gathering and removal may take place.

Agreements will also establish NPS-tribal protocols for monitoring park resources subject to gathering and removal operating protocols, and remedies for noncompliance in addition to those set out in the rule. In the case of noncompliance by members of the tribe, the NPS will initially apply these agreed-upon remedies and, if warranted, seek prosecution of specific violators, prior to terminating the agreement. This section also provides for any special conditions unique to the park area or tribal tradition that may be included within the scope of existing law. The NPS will authorize the tribe to manage gathering and removal by tribal members, subject to the conditions of the agreement. Gathering agreements will be implemented through a permit issued by the park for the authorized gatherers under 36 CFR 1.6.

This section requires the Regional Director to approve any agreement entered into under the rule.

This section explains the Superintendent's authority to close park areas to gathering and removal, notwithstanding the terms of any agreement or permit executed under this rule. The Superintendent may close a park area to gathering and removal when necessary to maintain public health and safety, protect environmental or scenic values, protect park resources, aid scientific research, implement management responsibilities, equitably allocate the use of facilities, or avoid conflict among visitor use activities. Those criteria are drawn verbatim from the existing NPS regulation authorizing closures generally, 36 CFR 1.5(a). Under that regulation, the Superintendent may close all or a portion of a park area to all public use or to a specific activity or use for one of the enumerated reasons. It is important to note that an order closing a park area to gathering and removal does not suspend, rescind, or otherwise affect the underlying tribal gathering agreement, which remains in effect. Except for emergencies, the Superintendent will provide appropriate public notice of any closures in accordance with 36 CFR 1.7. The Superintendent will also provide written notice of the closure directly to any tribe that has an agreement to gather and remove plants or plant parts from the close area.

This section explains when an agreement or permit may be suspended or terminated by the NPS. The rule allows the NPS to suspend or terminate an agreement or permit where terms or conditions are violated or unanticipated or significant adverse impacts occur. The Superintendent must prepare a written determination justifying the action. A termination is subject to the concurrence of the Regional Director. Termination of an agreement or permit will be based on factors such as careful analysis of impacts on park resources and the effectiveness of NPS-tribal agreement administration. The NPS also may address violations of a permit under 36 CFR 1.6(g).

Gathering and removal of plants or plant parts remains prohibited, except as authorized under this rule (including the terms and conditions of an agreement and permit issued under this rule), or as otherwise authorized by federal statute, treaty, or another NPS regulation.

This section explains that tribes have the right to appeal a decision made by the Superintendent to deny a request for an agreement. Decisions on appeal will be made by the Regional Director pursuant to the procedures in this rule.

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

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

This rule will not have a significant economic effect on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq.). This certification is based on information contained in the report titled, “Cost-Benefit and Regulatory Flexibility Analyses” available for review at https://www.nps.gov/tribes/final_rule.htm.

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

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

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

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

This determination is based on information from “Cost-Benefit and Regulatory Flexibility Analyses” available for review at https://www.nps.gov/tribes/final_rule.htm.

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. It addresses use of NPS lands only. A statement containing the information required by the UMRA (2 U.S.C. 1531 et seq.) is not required.

This rule does not effect a taking of private property or otherwise have taking implications under Executive Order 12630. A takings implication assessment is not required.

Under the criteria in Executive Order 13132, the rule does not have sufficient Federalism implications to warrant the preparation of a Federalism summary impact statement. This rule only affects use of NPS-administered lands. It has no outside effects on other areas. A Federalism summary impact statement is not required.

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

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

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

The Department of the Interior strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175, and have identified direct tribal implications. We have consulted with tribes on a government-to-government basis as explained above in this rule.

This rule contains a collection of information that the Office of Management and Budget (OMB) has approved under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). OMB has assigned OMB Control Number 1024-0271, which expires 07/31/2019. We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.

Title: Gathering of Certain Plants or Plant Parts by Federally Recognized Indian Tribes for Traditional Purposes, 36 CFR 2.

OMB Control Number: 1024-0271.

Service Form Number: None.

Type of Request: New Collection

Description of Respondents: Indian tribes.

Respondent's Obligation: Required to obtain or retain a benefit.

Frequency of Collection: On occasion.

Estimated Number of Respondents: 30.

An Indian tribe that has a traditional association with a park area may request that we enter into an agreement with the tribe for gathering and removal from the park area of plants or plant parts for traditional purposes. The agreement will define the terms under which the Indian tribe may be issued permits that will designate the tribal members who may gather and remove plants or plant parts within the park area in accordance with the terms and conditions of the agreement and the permit.

(1) The initial request from an Indian tribe that we enter into an agreement with the tribe for gathering and removal of plants or plant parts for traditional purposes. The request must include the information specified in § 2.6(c).

(2) The agreement, which defines the terms under which the Indian tribe may be issued a permit. To make determinations based upon tribal requests or to enter into an agreement, we may need to collect information from those Indian tribes who make requests and from the specific tribal members. The agreement must contain the information specified in § 2.6(f).

During the final rule stage, we made one change in our information collection requirements. We added a new section on the appeals process, outlining the right of tribes to appeal decisions made by the Superintendent to the Regional Director. Appeals should set forth the substantive factual or legal bases for the tribe's disagreement with the Superintendent's decision and any other information the tribe wishes the Regional Director to consider. During the proposed rule stage, we solicited comments on the information collection requirements. We addressed all comments in the preamble above. A number of comments addressed the issue of the information requested under this rule. These comments fell within three broad categories:

(1) Is there a basic need for the information? Some comments questioned why we need to collect the information specified in the gathering rule, suggesting instead that the individual tribes are better suited to identify the people, plants, places, and methods by which plant gathering would take place.

NPS Response: Under the rule, tribes identify the specific details of their proposed plant gathering and provide that information to the Superintendent for consideration. This information is necessary to meet our legislated and regulatory responsibilities to conserve park resources, particularly plants. Because parks have different biological conditions and plants as well as different enabling legislation, the information we collect under this rule is required to develop NEPA environmental documents and to determine whether specific communities of plants or plant parts are healthy enough to be included in a plant gathering agreement.

(2) Why is there a need for a tribe to provide specific details about the plant gathering? Some comments called the level of detail required for the agreements “overly burdensome” and raised the question as to whether or not we need to collect: Specific lists of tribal members who would be allowed to collect plants and plant parts, specific lists of the plants targeted for gathering by the tribal members, specific locations from which the plants would be gathered, specific times where the plant gathering would take place, and specific descriptions of the traditional methods to be used to gather the plants.

NPS Response: We believe the information is necessary to minimize impacts to park resources and values, allow for efficient implementation of agreements, and prevent unauthorized gathering. We believe that this rule is broad enough to allow latitude in the specificity required to create workable agreements between the NPS and traditionally associated tribes. Permits issued under the agreements must list tribal members who will gather plants or plant parts during the time period covered by the permit. Tribal members who are authorized to gather plants are encouraged to have tribal identification cards in their possession during gathering activities. In addition to the permitted tribal members, tribes will need to provide a list of plants or plant parts to be gathered under the agreements, general time frames when the gathering of plants or plant parts would take place, and a general description of the proposed method of gathering so that the NPS can continue to ensure that there will be no significant adverse impacts to park resources. We believe that the categories of information that we will collect are necessary to develop the environmental assessment and finding of no significant impact under NEPA and to determine whether or not the communities of plants or plant parts desired are healthy enough to be included within a plant gathering agreement.

(3) Can the NPS protect the sensitive information tribes provide about traditional methods of gathering, traditional uses of plants and plant parts, and so forth? Many tribal respondents questioned our ability to protect confidential information about who does the gathering and plant gathering locations.

NPS Response: See NPS Response to Comment 11 above.

We did not change our information collection requirements based on these comments. The public may comment at any time on the accuracy of the information collection burden in this rule. You may send comments on any aspect of these information collection requirements to the Information Collection Clearance Officer, National Park Service, 12201 Sunrise Valley Drive (Mail Stop 242), Reston, VA 20192.

This rule does not constitute a major federal action significantly affecting the quality of the human environment. A detailed statement under NEPA is not required because the rule is covered by a categorical exclusion. The Department of the Interior Regulations for implementing NEPA at 43 CFR 46.210(i) and the NPS NEPA Handbook at ¶ 3.2(H) allow for the following to be categorically excluded: “policies, directives, regulations, and guidelines that are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis and will later be subject to the NEPA-compliance process, either collectively or case-by-case.”

The NPS has determined that the environmental effects of this rule are too broad, speculative, or conjectural for a meaningful analysis. In order to enter into an agreement for gathering of natural products under the rule, the NPS will first need to receive a request from an appropriate tribal official. While there are a number of Indian tribes that may qualify for an agreement under the rule, the NPS can only speculate at this point as to which Indian tribes will request an agreement, which park areas will be affected, and what specific resources specific Indian tribes will request to collect. Because of this, the NPS has explicitly required that it prepare an environmental assessment and a finding of no significant impact that meets the requirements of NEPA for each gathering agreement, on a case-by-case basis. The activities allowed by the permit must fall within the scope of activities agreed upon in the gathering agreement. As a result, no collection of plants or plant parts will occur under this rule until after a site-specific NEPA analysis is completed.

The NPS has also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

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

The primary authors of the proposed rule were Patricia L. Parker, Ph.D., Chief, American Indian Liaison Office; Frederick F. York, Ph.D., Regional Anthropologist, Pacific West Region; and Philip Selleck, Associate Regional Director for Operations, National Capital Region. The primary authors of the final rule were Joe Watkins, Ph.D., Chief, American Indian Liaison Office; Michael J. Evans, Ph.D., Chief, Cultural Anthropology/Ethnography, Midwest Region; Timothy Cochrane, Ph.D., Superintendent, Grand Portage National Monument; and Dr. Meredith Hardy, Archeologist, Southeast Archeological Center.

For the reasons given in the preamble, the National Park Service amends 36 CFR part 2 as follows:

U.S. EPA Regional Office Contacts:

The public may inspect the rule and state-specific technical support information at the following locations:

The following is an outline of the Preamble.

The following are abbreviations of terms used in the preamble.

The purpose of this final action is to announce and promulgate initial air quality designations for certain areas in the U.S. for the 2010 primary SO2 NAAQS, in accordance with the requirements of the CAA. The EPA is designating areas as either nonattainment, unclassifiable/attainment, or unclassifiable, based on whether the areas do not meet the NAAQS or contribute to a nearby area that does not meet the NAAQS; meet the NAAQS; or cannot be classified on the basis of available information as meeting or not meeting the NAAQS, respectively. This is the second round of designations for the 2010 SO2 NAAQS. As discussed in Section IV of this document, the EPA is designating SO2 areas in multiple rounds. The EPA completed the first round of SO2 designations in an action signed by the Administrator on July 25, 2013 (78 FR 47191; August 5, 2013). In that action, the EPA designated 29 areas in 16 states as nonattainment, based on air quality monitoring data.

In this second round of SO2 designations, the EPA is designating 61 additional areas in 24 states: 4 nonattainment areas, 41 unclassifiable/attainment areas and 16 unclassifiable areas. The list of areas being designated in the affected states and the boundaries of each area appear in the tables for each state within the regulatory text at the end of this document. These designations are based on the EPA's technical assessment of and conclusions regarding the weight of evidence for each area, including but not limited to available air quality monitoring data or air quality modeling. With respect to air quality monitoring data, the EPA considered data from at least the most recent three calendar years 2013-2015, as available, including an evaluation of exceptional event claims.1 In most of the modeling runs conducted by states or third parties, the impacts of the actual emissions for the 3-year periods 2012-2014 or 2013-2015 were considered, and in some cases modeling evaluated recent or not-yet-effective allowable emissions limits in lieu of or as a supplement to modeling of actual emissions. For the areas being designated nonattainment, the CAA directs states to develop and submit to the EPA State Implementation Plans within 18 months of the effective date of this final rule, that meet the requirements of sections 172(c) and 191-192 of the CAA and provide for attainment of the NAAQS as expeditiously as practicable, but not later than 5 years from the effective date of this final rule. We also note that under EPA's Data Requirements Rule in 40 CFR part 51, subpart BB (80 FR 51052; August 21, 2015), the EPA expects to receive additional air quality characterization for many of the sources located in areas subject to this round of designations, and the agency could consider such data that corresponds to those areas designated unclassifiable in this round in future actions that assess the areas' air quality status.

The Administrator signed a final rule revising the primary SO2 NAAQS on June 2, 2010. The rule was published in the Federal Register on June 22, 2010 (75 FR 35520) and became effective on August 23, 2010. Based on the Administrator's review of the air quality criteria for oxides of sulfur and the primary NAAQS for oxides of sulfur as measured by SO2, the EPA revised the primary SO2 NAAQS to provide requisite protection of public health with an adequate margin of safety. Specifically, the EPA established a new 1-hour SO2 standard at a level of 75 parts per billion (ppb), which is met at an ambient air quality monitoring site when the 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations is less than or equal to 75 ppb, as determined in accordance with Appendix T of 40 CFR part 50. 40 CFR 50.17(a)-(b). The EPA also established provisions to revoke both the existing 24-hour and annual primary SO2 standards, subject to certain conditions. 40 CFR 50.4(e).

Current scientific evidence links short-term exposures to SO2, ranging from 5 minutes to 24 hours, with an array of adverse respiratory effects including bronchoconstriction and increased asthma symptoms. These effects are particularly important for asthmatics at elevated ventilation rates (e.g., while exercising or playing). Studies also show a connection between short-term exposure and increased visits to emergency departments and hospital admissions for respiratory illnesses, particularly in at-risk populations including children, the elderly and asthmatics.

The EPA's NAAQS for SO2 is designed to protect against exposure to the entire group of sulfur oxides (SOX). SO2 is the component of greatest concern and is used as the indicator for the larger group of gaseous SOX. Other gaseous SOX (e.g., SO3) are found in the atmosphere at concentrations much lower than SO2.

Emissions that lead to high concentrations of SO2 generally also lead to the formation of other SOX. Control measures that reduce SO2 can generally be expected to reduce people's exposures to all gaseous SOX. This may also have the important co-benefit of reducing the formation of fine sulfate particles, which pose significant public health threats. SOX can react with other compounds in the atmosphere to form small particles. These particles penetrate deeply into sensitive parts of the lungs and can cause or worsen respiratory disease, such as emphysema and bronchitis, and can aggravate existing heart disease, leading to increased hospital admissions and premature death.2 The EPA's NAAQS for particulate matter are designed to provide protection against these health effects.

After the EPA promulgates a new or revised NAAQS, the EPA is required to designate all areas of the country as either “nonattainment,” “attainment,” 3 or “unclassifiable,” for that NAAQS pursuant to section 107(d)(1) of the CAA. Section 107(d)(1)(A)(i) of the CAA defines a nonattainment area as “any area that does not meet (or that contributes to ambient air quality in a nearby area that does not meet) the national primary or secondary ambient air quality standard for the pollutant.” If an area meets either prong of this definition, then the EPA is obligated to designate the area as “nonattainment.” This provision also defines an attainment area as any area other than a nonattainment area that meets the NAAQS and an unclassifiable area as any area that cannot be classified on the basis of available information as meeting or not meeting the NAAQS.

The process for designating areas following promulgation of a new or revised NAAQS is contained in section 107(d) of the CAA. The CAA requires the EPA to complete the initial designations process within 2 years of promulgating a new or revised standard. If the Administrator has insufficient information to make these designations by that deadline, the EPA has the authority to extend the deadline for completing designations by up to 1 year. On July 27, 2012, the EPA announced that it had insufficient information to complete the designations for the 1-hour SO2 standard within 2 years and extended the designations deadline to June 3, 2013 (77 FR 46295; August 3, 2012).

By no later than 1 year after the promulgation of a new or revised NAAQS, CAA section 107(d)(1)(A) provides that each state governor is required to recommend air quality designations, including the appropriate boundaries for areas, to the EPA. The EPA reviews those state recommendations and is authorized to make any modifications the Administrator deems necessary. The statute does not define the term “necessary,” but the EPA interprets this to authorize the Administrator to modify designations that did not meet the statutory requirements or were otherwise inconsistent with the facts or analysis deemed appropriate by the EPA. If the EPA is considering modifications to a state's initial recommendation, the EPA is required to notify the state of any such intended modifications to its recommendation not less than 120 days prior to the EPA's promulgation of the final designation. These notifications are commonly known as the “120-day letters.” During this period, if the state does not agree with the EPA's modification, it has an opportunity to respond to the EPA and to demonstrate why it believes the modification proposed by the EPA is inappropriate. If a state fails to provide any recommendation for an area, in whole or in part, the EPA still must promulgate a designation that the Administrator deems appropriate, pursuant to CAA section 107(d)(1)(B)(ii). While CAA section 107(d) specifically addresses the designations process between the EPA and states, the EPA intends to follow the same process to the extent practicable for tribes that choose to make designation recommendations. If a tribe does not provide designation recommendations, the EPA will promulgate the designations that the Administrator deems appropriate.

The EPA notes that CAA section 107(d) provides the agency with discretion to determine how best to interpret the terms in the definition of a nonattainment area (e.g., “contributes to” and “nearby”) for a new or revised NAAQS, given considerations such as the nature of a specific pollutant, the types of sources that may contribute to violations, the form of the standards for the pollutant, and other relevant information. In particular, the EPA's position is that the statute does not require the agency to establish bright line tests or thresholds for what constitutes “contribution” or “nearby” for purposes of designations.4

Similarly, the EPA's position is that the statute permits the EPA to evaluate the appropriate application of the term “area” to include geographic areas based upon full or partial county boundaries, as may be appropriate for a particular NAAQS. For example, CAA section 107(d)(1)(B)(ii) explicitly provides that the EPA can make modifications to designation recommendations for an area “or portions thereof,” and under CAA section 107(d)(1)(B)(iv) a designation remains in effect for an area “or portion thereof” until the EPA redesignates it.

For the 2010 SO2 NAAQS, designation recommendations were due to the EPA by June 3, 2011. Designation recommendations and supporting documentation were submitted by most states and several tribes to the EPA by that date. After receiving these recommendations, and after reviewing and evaluating each recommendation, the EPA provided responses to the states and tribes regarding certain areas on February 7, 2013. The state and tribal letters, including the initial recommendations, the EPA's February 2013 responses to those letters, any modifications, and the subsequent state comment letters, are in the separate docket for that first round of SO2 designations, at Docket ID NO. EPA-HQ-OAR-2012-0233.

Although not required by section 107(d) of the CAA, the EPA also provided an opportunity for members of the public to comment on the EPA's February 2013 response letters. The EPA completed the first round of SO2 designations on July 25, 2013, designating 29 areas in 16 states as nonattainment (78 FR 47191; August 5, 2013). In the preamble to that action, the EPA stated that in separate future actions, it intended to address designations for all other areas for which the agency was not yet prepared to issue designations and that were consequently not addressed in that final rule. With input from a diverse group of stakeholders, EPA developed a comprehensive implementation strategy for the future SO2 designations actions that focuses resources on identifying and addressing unhealthy levels of SO2 in areas where people are most likely to be exposed to violations of the standard.

Following the initial August 5, 2013, designations, three lawsuits were filed against the EPA in different U.S. District Courts, alleging the agency had failed to perform a nondiscretionary duty under the CAA by not designating all portions of the country by the June 2, 2013, deadline. In an effort intended to resolve the litigation in one of those cases, the EPA and the plaintiffs, Sierra Club and the Natural Resources Defense Council, filed a proposed consent decree with the U.S. District Court for the Northern District of California. On March 2, 2015, the court entered the consent decree and issued an enforceable order for the EPA to complete the area designations by three specific deadlines according to the court-ordered schedule.

According to the court-ordered schedule, the EPA must complete this second round of SO2 designations by no later than July 2, 2016 (16 months from the court's order). The court order specifies that in this round the EPA must designate two groups of areas: (1) Areas that have newly monitored violations of the 2010 SO2 NAAQS and (2) areas that contain any stationary sources that had not been announced as of March 2, 2015, for retirement and that, according to the EPA's Air Markets Database, emitted in 2012 either (i) more than 16,000 tons of SO2, or (ii) more than 2,600 tons of SO2 with an annual average emission rate of at least 0.45 pounds of SO2 per one million British thermal units (lbs SO2/mmBTU). Specifically, a stationary source with a coal-fired electric generating unit that, as of January 1, 2010, had a capacity of over 5 megawatts and otherwise meets the emissions criteria, is excluded from the July 2, 2016, deadline if it had announced through a company public announcement, public utilities commission filing, consent decree, public legal settlement, final state or federal permit filing, or other similar means of communication, by March 2, 2015, that it will cease burning coal at that unit.

The last two court-ordered deadlines for completing remaining designations are December 31, 2017 (Round 3), and December 31, 2020 (Round 4). In Round 3, the EPA must designate any remaining undesignated areas, for which, by January 1, 2017, states have not installed and begun operating a new SO2 monitoring network meeting the EPA's specifications referenced in the then-anticipated SO2 Data Requirements Rule. By December 31, 2020, the EPA must designate all remaining areas. The EPA finalized the SO2 Data Requirements Rule (DRR) on August 10, 2015, codified at 40 CFR part 51, subpart BB (80 FR 51052; August 21, 2015). The rule establishes requirements for state and other air agencies to provide additional monitoring or modeling information on a timetable consistent with these designation deadlines. We expect this additional information to become available in time to help inform these subsequent designations.

On March 20, 2015, the EPA sent letters to Governors notifying them of the March 2, 2015, court order and identifying any sources in their states meeting the criteria for the round of designations to be completed by July 2, 2016. The EPA offered states the opportunity to submit updated recommendations and supporting information for the EPA to consider for the affected areas. The EPA also notified states that the agency had updated its March 24, 2011, SO2 designations guidance to support analysis of designations and boundaries for the next rounds of designations. All of the states with affected areas submitted updated designation recommendations. For areas of Indian county, there were no violating monitors and no sources meeting the criteria for the designations to be completed by July 2, 2016. However, the EPA also sent letters to Tribal Leaders where the EPA had identified a state source that met the criteria in the court order and that could potentially be impacting the tribal land. The EPA also offered tribes the opportunity to submit information or a recommendation for the potentially affected areas of tribal land. No tribes submitted information or recommendations for this round of designations.

On or about February 16, 2016, the EPA notified 24 affected states of its intended designation of certain specific areas as either nonattainment, unclassifiable/attainment, or unclassifiable for the SO2 NAAQS. These states then had the opportunity to demonstrate why they believed an intended modification of their updated recommendations by the EPA may be inappropriate. Although not required, as the EPA had done for the first round of SO2 designations, the EPA also chose to provide an opportunity for members of the public to comment on the EPA's February 2016 response letters. The EPA published a notice of availability and public comment period for the intended designation on March 1, 2016 (81 FR 10563). The public comment period closed on March 31, 2016. The updated recommendations, the EPA's February 2016 responses to those letters, any modifications, and the subsequent state and public comment letters, are in the docket for this second round of SO2 designations at Docket ID NO. EPA-HQ-OAR-2014-0464 and are available on the SO2 designations Web site.

In the notice of proposed rulemaking for the revised SO2 NAAQS (74 FR 64810; December 8, 2009), the EPA issued proposed guidance on its approach to implementing the standard, including its approach to initial area designations. The EPA solicited comment on that guidance and, in the notice of final rulemaking (75 FR 35520; June 22, 2010), provided further guidance concerning implementation of the standard and how to identify nonattainment areas and boundaries for the SO2 NAAQS. Subsequently, on March 24, 2011, the EPA provided additional designations guidance to assist states with making their recommendations for area designations and boundaries.5 That guidance recommended, among other things, that monitoring data from the most recent three consecutive years be used to identify a violation of the SO2 NAAQS. This is appropriate because the form of the SO2 NAAQS is calculated as a 3-year average of the 99th percentile of the yearly distribution of 1-hour daily maximum SO2 concentrations (specifically the most recent 3 consecutive years). The EPA based the first round of final SO2 designations on monitored SO2 concentrations from Federal Reference Method and Federal Equivalent Method monitors that are sited and operated in accordance with 40 CFR parts 50 and 58.

In the March 24, 2011, guidance, the EPA stated that the perimeter of a county containing a violating monitor would be the initial presumptive boundary for nonattainment areas, but also stated that the state, tribe and/or the EPA could conduct additional area-specific analyses that could justify establishing either a larger or smaller area. The EPA indicated that the following factors should be considered in an analysis of whether to exclude portions of a county and whether to include additional nearby areas outside the county as part of the designated nonattainment area: (1) Air quality data; (2) emissions-related data; (3) meteorology; (4) geography/topography; and (5) jurisdictional boundaries, as well as other available data. States and tribes may identify and evaluate other relevant factors or circumstances specific to a particular area.

Following entry of the March 2, 2015, court order, updated designations guidance was issued by the EPA through a March 20, 2015, memorandum from Stephen D. Page, Director, U.S. EPA, Office of Air Quality Planning and Standards, to Air Division Directors, U.S. EPA Regions 1-10. This memorandum supersedes the March 24, 2011, designation guidance for the 2010 SO2 NAAQS, and identifies factors that the EPA intends to evaluate in determining whether areas are in violation of the 2010 SO2 NAAQS. The guidance also contains the factors the EPA intends to evaluate in determining the boundaries for all remaining areas in the country, consistent with the court's order and schedule. These factors include: (1) Air quality characterization via ambient monitoring or dispersion modeling results; (2) emissions-related data; (3) meteorology; (4) geography and topography; and (5) jurisdictional boundaries. This guidance was supplemented by two non-binding technical assistance documents intended to assist states and other interested parties in their efforts to characterize air quality through air dispersion modeling or ambient air quality monitoring for sources that emit SO2. Notably, the EPA's documents titled, “SO2 NAAQS Designations Modeling Technical Assistance Document” (Modeling TAD) and “SO2 NAAQS Designations Source-Oriented Monitoring Technical Assistance Document” (Monitoring TAD), were first made available to states and other interested parties in spring of 2013. Both of these documents were most recently updated in February 2016 and are available at https://www.epa.gov/sulfur-dioxide-designations.

For designations for the SO2 NAAQS, air agencies have the flexibility to characterize air quality using either appropriately sited ambient air quality monitors or modeling of actual or allowable source emissions. The EPA issued the non-binding draft Monitoring TAD and Modeling TAD recommending how air agencies should conduct such monitoring or modeling. For the SO2 designations contained in this action, the EPA considered available air quality monitoring data from at least calendar years 2013-2015, including an evaluation of exceptional events claims, and modeling submitted by state air agencies and other parties. In most of the modeling runs, the impacts of the actual emissions for the 3-year periods 2012-2014 or 2013-2015 were considered, and in some cases modeling evaluated recent or not-yet-effective allowable emissions limits in lieu of or as a supplement to modeling of actual emissions. The 1-hour primary SO2 standard is violated at an ambient air quality monitoring site (or in the case of dispersion modeling, at an ambient air quality receptor location) when the 3-year average of the annual 99th percentile of the daily maximum 1-hour average concentrations exceeds 75 ppb, as determined in accordance with appendix T of 40 CFR part 50. For this round of designations there were no areas designated nonattainment based on monitoring data showing violations of the NAAQS. To determine model-based violations, the EPA believes that dispersion modeling is an appropriate tool, as discussed in the Modeling TAD. The TAD provides recommendations on how an air agency might appropriately and sufficiently model ambient air in proximity to an SO2 emission source to establish air quality data for comparison to the 2010 primary SO2 NAAQS for the purposes of designations.

In Round 2 of the designations for the 2010 primary SO2 NAAQS, the EPA is designating 61 state areas as either nonattainment, unclassifiable/attainment, or unclassifiable. For areas of Indian county, there were no violating monitors and no sources meeting the criteria for the designations to be completed by July 2, 2016. No areas of Indian country are being designated as nonattainment as part of this round. Any Indian country located in areas being designated as unclassifiable/attainment or unclassifiable are being designated along with the surrounding state area. All remaining state areas and areas of Indian country will be addressed in subsequent rounds of SO2 designations.

Information providing the basis for this action are provided in several technical support documents (TSDs), a response to comments document (RTC) and other information in the docket. The TSDs, RTC, applicable EPA's guidance memoranda and copies of correspondence regarding this process between the EPA and the states, tribes and other parties, are available for review at the EPA Docket Center listed above in the ADDRESSES section of this document and on the agency's SO2 Designations Web site at https://www.epa.gov/sulfur-dioxide-designations. Area-specific questions can be addressed to the EPA Regional Offices (see contact information provided at the beginning of this document).

When the EPA establishes a new or revised NAAQS, the CAA requires the EPA to designate all areas of the U.S. as either nonattainment, attainment, or unclassifiable.

This final action addresses designation determinations for certain areas for the 2010 primary SO2 NAAQS. Area designations address environmental justice concerns by ensuring that the public is properly informed about the air quality in an area. In locations where air quality does not meet the NAAQS, the CAA requires relevant state authorities to initiate appropriate air quality management actions to ensure that all those residing, working, attending school, or otherwise present in those areas are protected, regardless of minority and economic status.

Upon promulgation of a new or revised NAAQS, the CAA requires the EPA to designate areas as attaining or not attaining the NAAQS. The CAA then specifies requirements for areas based on whether such areas are attaining or not attaining the NAAQS. In this final rule, the EPA assigns designations to selected areas as required.

This action is exempted from review from the Office of Management and Budget because it responds to the CAA requirement to promulgate air quality designations after promulgation of a new or revised NAAQS.

This action does not impose an information collection burden under the PRA. This action responds to the requirement to promulgate air quality designations after promulgation of a new or revised NAAQS. This requirement is prescribed in the CAA section 107 of title 1. This action does not contain any information collection activities.

This final rule is not subject to the RFA. The RFA applies only to rules subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. This rule is not subject to notice-and-comment requirements under the APA but is subject to the CAA section 107(d)(2)(B) which does not require a notice-and-comment rulemaking to take this action.

This action does not contain any unfunded mandates as described by URM, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

This final action does not have federalism implications. It 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.

This action does not have tribal implications, as specified in Executive Order 13175. This action concerns the designation of certain areas in the U.S. for the 2010 primary SO2 NAAQS. The CAA provides for states and eligible tribes to develop plans to regulate emissions of air pollutants within their areas, as necessary, based on the designations. The Tribal Authority Rule (TAR) provides tribes the opportunity to apply for eligibility to develop and implement CAA programs, such as programs to attain and maintain the SO2 NAAQS, but it leaves to the discretion of the tribe the decision of whether to apply to develop these programs and which programs, or appropriate elements of a program, the tribe will seek to adopt. This rule does not have a substantial direct effect on one or more Indian tribes. It does not create any additional requirements beyond those of the SO2 NAAQS. This rule establishes the designations for certain areas of the country for the SO2 NAAQS, but no areas of Indian country are being designated as nonattainment by this action. Furthermore, this rule does not affect the relationship or distribution of power and responsibilities between the federal government and Indian tribes. The CAA and the TAR establish the relationship of the federal government and tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. Thus, Executive Order 13175 does not apply.

Although Executive Order 13175 does not apply to this rule, after the EPA promulgated the 2010 primary SO2 NAAQS, the EPA communicated with tribal leaders and environmental staff regarding the designations process. The EPA also sent individualized letters to all federally recognized tribes to explain the designation process for the 2010 primary SO2 NAAQS, to provide the EPA designations guidance, and to offer consultation with the EPA. The EPA provided further information to tribes through presentations at the National Tribal Forum and through participation in National Tribal Air Association conference calls. The EPA also sent individualized letters to all federally recognized tribes that submitted recommendations to the EPA about the EPA's intended designations for the SO2 standard and offered tribal leaders the opportunity for consultation. These communications provided opportunities for tribes to voice concerns to the EPA about the general designations process for the 2010 primary SO2 NAAQS, as well as concerns specific to a tribe, and informed the EPA about key tribal concerns regarding designations as the rule was under development. For this second round of SO2 designations, the EPA sent additional letters to tribes that could potentially be affected and offered additional opportunities for participation in the designations process. The communication letters to the tribes are provided in the dockets for Round 1 (Docket ID NO. EPA-HQ-OAR-2012-0233 and Round 2 (Docket ID NO. EPA-HQ-OAR-2014-0464).

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

This action does not involve technical standards.

The EPA believes this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and or indigenous peoples, as specified Executive Order 12898 (59 FR 7629, February 16, 1994). The documentation for this decision is contained in Section IX of this document.

The CRA, 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 U.S. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives and the Comptroller General of the U.S. 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). This rule will be effective September 12, 2016.

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

This final action designating areas for the 2010 primary SO2 NAAQS is “nationally applicable” within the meaning of section 307(b)(1). This final action establishes designations for areas across the U.S. for the 2010 primary SO2 NAAQS. At the core of this final action is the EPA's interpretation of the definitions of nonattainment, attainment and unclassifiable under section 107(d)(1) of the CAA, and its application of that interpretation to areas across the country. Accordingly, the Administrator has determined that this final action is nationally applicable and is hereby publishing that finding in the Federal Register.

For the same reasons, the Administrator also is determining that the final designations are of nationwide scope and effect for the purposes of section 307(b)(1). This is particularly appropriate because, in the report on the 1977 Amendments that revised section 307(b)(1) of the CAA, Congress noted that the Administrator's determination that an action is of “nationwide scope or effect” would be appropriate for any action that has a scope or effect beyond a single judicial circuit. H.R. Rep. No. 95-294 at 323, 324, reprinted in 1977 U.S.C.C.A.N. 1402-03. Here, the scope and effect of this final action extends to numerous judicial circuits since the designations apply to areas across the country. In these circumstances, section 307(b)(1) and its legislative history calls for the Administrator to find the action to be of “nationwide scope or effect” and for venue to be in the D.C. Circuit. Therefore, this final action is based on a determination by the Administrator of nationwide scope or effect, and the Administrator is hereby publishing that finding in the Federal Register.

Thus, any petitions for review of these final designations must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date final action is published in the Federal Register.

For the reasons set forth in the preamble, 40 CFR part 81 is amended as follows:

This is a summary of the Commission's Report and Order and Order on Reconsideration in PS Docket Nos. 11-82 and 15-80 and ET Docket No. 04-35, adopted on May 25, 2016, and released on May 26, 2016. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street SW., Washington, DC 20554, or online at https://apps.fcc.gov/edocs_public/attachmatch/FCC-16-63A1.pdf. This Order updates several of the Commission's outage reporting metrics, methodologies, and procedures for a number of providers covered under its part 4 rules concerning disruptions to communications and directs the Public Safety and Homeland Security Bureau (Bureau) to further evaluate issues related to the sharing of information from the Commission's NORS program with state and federal partners.

1. Codified in part 4 of our rules, outage reporting requirements support our public safety goals by directing providers to report network outages that exceed specified magnitude and duration thresholds. Outage data give the Commission an overall picture of communications network reliability that enables it to identify adverse trends. In turn, the data enable Commission staff, working closely with providers and industry working groups, to understand and address systemic vulnerabilities. Such collaborative efforts have led to measurable improvements in network reliability and resiliency, and to the formulation of policies to promote more reliable and secure communications. Moreover, outage reports, particularly in the early stages of a communications disruption, provide critical situational awareness that enables the Commission to be an effective participant in emergency response and service restoration efforts.

2. In 2004, the Commission required outage reporting for communication disruptions impacting major transport facilities, specifically those with significant traffic-carrying capacity, such as DS3 circuits. The Commission created a metric and threshold for this outage reporting in standards defined in impacts to DS3 circuits; specifically, the Commission adopted DS3 as the base metric and 1,350 DS3 minutes as the reporting threshold. Since then, our part 4 rules require a covered provider to file reports with the Commission in the NORS online database when a DS3 circuit (or its equivalent) that it owns, operates, leases, or otherwise utilizes, experiences a communication disruption that lasts for at least 30 minutes and meets the 1,350 DS3 minute threshold. When the Commission originally adopted the part 4 rules, DS3 circuits were the “common denominator,” that is, the standard facility used in networks for major traffic transport. Today, however, providers use larger, fiber facilities for major traffic transport, and thus have decreased their use of DS3 circuits. This shift has rendered the DS3-based reporting metric and the corresponding 1,350 DS3 minute threshold obsolete and unhelpful for outage analysis. This is borne out by the past ten years' NORS data, which show a marked increase in reported DS3 standard-based incidents that involve only minor disruptions that are unlikely to have any significant communications impact or jeopardize public safety. In the same period, the industry has broadly adopted OC3 as the predominate architecture for major transport facilities.

3. Accordingly, in the Notice, we proposed to change the base major transport facility outage reporting metric from DS3 to OC3, to preserve our near-and medium-term ability to obtain critical information to analyze communications network reliability. We also proposed a corresponding reporting threshold shift from DS3 minutes to OC3 minutes. Finally, we proposed language to ensure inclusion of other transport facilities beyond OC3, i.e., “other circuits or aggregations of circuits that provide equal or greater capacity.” To effectuate that technologically neutral objective, we proposed to adjust the number of OC3 minutes based on some measure of equivalency to the current 900,000 user-minute threshold for voice-grade users, which we posited as 667 OC3 minutes. Despite suggestions to move our metric to OC12 or higher, we find that OC3 gives us the right amount of visibility into customer access circuits that may not be captured by a metric above OC3.

4. The record reflects strong support for adjusting the major transport facility outage metric and threshold as we proposed in the Notice. Several commenters agree that major transport traffic now takes place more on fiber than on DS3 circuits. Many commenters also acknowledge that changing the standard as proposed will give the Commission information on significant outages that are more likely to have a material impact on users. Indeed, commenters predict that the change from DS3 to OC (whether at OC3 or above) will enhance outage reporting efficiency and reduce reporting burdens while also ensuring that the rules continue to target high-capacity facilities and track major outage events that have a material impact on users. Commenters also agree that changing the standard from a DS3 basis to a higher capacity level basis will reduce the number of outage reports required for relatively minor incidents.

5. Despite broad support that the major transport facility outage reporting metric should change from a DS3 to a higher capacity, those supporting the change do not agree on what that specific capacity level should be. Several commenters share our view that the new metric should be based on OC3—where the threshold would be 667 OC3 minutes. Others, however, propose alternative metrics and thresholds. For example, some commenters suggest OC12 (or similarly high capacity level) as the appropriate standard because, in their view, it more properly reflects the past decade's network technology advancements than OC3. Others, like CenturyLink, push for an even higher metric, e.g., OC48 or OC192.

6. AT&T, on the other hand, recommends an OC12-based metric, and further proposes to measure the transport facility's “working” capacity, as opposed to our current measure of “failed” capacity, as the appropriate standard for reporting. In support of its working capacity proposal, AT&T explains that OC3 circuits are usually on its network edge (e.g., enterprise local loop and access services), and thus it argues that an OC3 metric would provide little insight on outages affecting the core of the network. Ultimately, AT&T proposes the elimination of major transport facility outage reporting altogether, and advocates instead that the Commission focus on events that impact customer service, such as “end office isolations, SS7 isolations, call blockages, and E911 failures.” AT&T maintains that in proposing a new metric and threshold, we miss an opportunity to conduct a comprehensive review of the information that will “best apprise [the Commission] of the overall health of the nation's networks,” and, that failed transport capacity is an inadequate metric because it does not necessarily reveal the effect on customers' service or provide an accurate portrayal of network health.

7. Comcast proposes to abandon a time-division multiplexing (TDM)-based metric and advocates using a bandwidth-based metric instead. Comcast advocates for the adoption of a “bandwidth-based standard, such as 1GB outage that lasts for at least 30 minutes.” Comcast further suggests that its approach can accommodate future changes more readily than a TDM-based standard. Verizon disagrees, arguing that more study is needed to ensure Comcast's platform-shift approach would capture a “genuine outage or significant degradation of service,” and “apply on a cross-platform basis.”

8. We adopt our proposals to (i) change the metric and threshold for major facility outages from a DS3-based to an OC3-based metric, and (ii) adjust the threshold to 667 OC3 user minutes accordingly. There is substantial record support for moving our metric to a standard based on higher capacity levels (e.g., to OC3 or higher). These changes update our major transport facility reporting to reflect prevalent technological changes in networks, and do so in a logical and technologically neutral manner. Compliance with this revised metric shall begin no later than 6 months after the Effective Date of the rules.

9. Moreover, multiple commenters agree that providers have been moving a majority of their traffic onto larger fiber facilities, a trend that is likely to continue. Thus, although a DS3-based metric may have been the right standard for 2004's predominant technology for major transport, it is no longer appropriate. At this time, adjusting the metric to OC3 will streamline the reporting in general, a benefit both to providers and the Commission alike through reduced reporting of minor incidents, allowing time and resources for an increased focus on meaningful outage reporting that is more likely to have a user material impact.

10. At this time, we are not persuaded by those commenters who advocate for a higher OC level. An OC3-based metric will generate the visibility into the network components that an OC12-based metric may not, as it would capture access circuit outages for business customers. Setting a metric at OC12 would provide the Commission with limited, inadequate visibility into major transport facility infrastructure and related outages, i.e., those beyond the network core. Further, we recognize that some networks may utilize OC3 circuits as access circuits and others may utilize them for interoffice facility traffic, and so an OC3-based metric may not provide the same degree of visibility into operational health for all providers' networks. Nevertheless, we believe that basing our outage reporting requirements at the OC3 level “or their equivalents” as proposed in the Notice captures the important communication disruptions in networks large and small, regardless of providers' OC3 circuit usage. Moreover, an OC3 metric allows the Commission to better focus on outage trends that may uniquely affect small and medium-sized businesses, whose traffic is often transported over OC3 facilities. Therefore, we adopt an OC3 metric for major facility outages.

11. In doing so, we affirm the importance of an independent outage reporting requirement for major transport facility failures. Through the collected information on the “potential impact on all communications services of major infrastructure failures,” specifically information about “infrastructure components having significant traffic-carrying capacity,” as the part 4 rules were intended to capture, our work has led to increased collaborative efforts with providers and a more efficient mitigation of outage trends. AT&T's proposal to eliminate major transport facility reporting requirements assumes that (1) our 900,000 user-minute threshold captures the same visibility of major transport facilities as our current DS3 metric and threshold, and that (2) providers only use OC3 circuits as access circuits to conclude that the adoption of our proposal would lead to duplicative reporting. While a few communication disruptions may be reportable outages because they meet both thresholds (900,000 user minutes; 1,350 DS3 minutes), by having the two metrics and thresholds we capture outages caused by switch failures or major transport equipment failures. Therefore, if we eliminated the major transport outage reporting, we would likely miss communication disruptions experienced in interoffice transport facilities. Moreover, while some providers, such as AT&T, may use OC3 circuits as access circuits, other providers may design their networks differently and some customers, like small and medium-sized businesses may be uniquely impacted at the OC3 level. To address networks designed like AT&T's, the rules adopted today capture communication disruptions experienced in higher capacity levels than OC3, by defining OC3 minutes using OC3 “or their equivalents.”

12. The adoption of the OC3 metric ensures an appropriate level of Commission visibility into the resiliency and reliability of critical infrastructure presently—and for at least the near-to-medium term—in use in communications networks for major traffic transport. Such visibility, adjusted to the OC3 level, is an essential component of the Commission's network reliability and public safety duties. Thus, we decline proposals to eliminate major transport facility outage reporting.

13. Finally, two commenters suggest alternative proposals, neither of which provides the needed visibility into the nation's networks for the Commission to ensure communications are reliable and resilient. AT&T's “working capacity” proposal would use a measure such as “the percentage of the circuit dedicated to voice channels.” It would thus require providers to assess whether and when to give the Commission the major transport facility outage reports it needs. Our current requirements give clear direction: once a DS3 circuit experiences a communication disruption for at least 1,350 DS3 minutes and lasts for at least 30 minutes, the provider must report the outage accordingly. As announced in 2004, we continue to believe that “our concern is the failure of working DS3s regardless of the services being carried or the fill at the time of the failure.” Significantly, AT&T's “working capacity” proposal would generate burdens on providers by imposing measurement mechanisms based on a working capacity metric that, as an initial step, would require the provider to identify the percentage of the circuit dedicated to voice channels. It remains unclear whether other providers can measure working capacity on their facilities at this time, or the costs involved with such monitoring. It is also unclear how AT&T's proposal applies in the legacy or the transition network contexts. Further, AT&T's proposal would constitute a shift that does not comport with the logic of outage reporting, which necessarily focuses on what does not work, instead of what does work. Accordingly, we reject AT&T's “working capacity” proposal.

14. Comcast proposes a bandwidth-based standard for major transport facility outages, as described above. The proposal requires further study and therefore cannot be the basis to change our metric and threshold for major transport facility outage reporting at this time. We agree with Comcast that data traffic makes up an increasingly large part of bandwidth needs for transport services. We also note that we are in a state of transition from TDM to IP. This state of transition requires reporting requirements that are sufficient to capture outages in both TDM and IP networks, including specifically those outages impacting physical facilities and network components (e.g., copper and fiber cables, networking switches and routers). We also believe that the successful and reliable delivery of IP-based services and applications (e.g., email) is important. The OC3 metric and 667 OC3 minute threshold adopted today address outages in major transport facilities carried through TDM-based and SONET facilities. We nevertheless find that Comcast's proposal has merit and seek further input on broadband reporting thresholds in the related Further Notice. Therefore, we decline to adopt Comcast's proposal for a bandwidth-based standard for reporting at this time.

15. Under our current rules, providers must file reports for simplex event outages lasting five days or more. A simplex event occurs when a DS3 circuit, designed with multiple paths to provide circuit resiliency, experiences a failure on one working path. In the Notice, we proposed to shorten the reporting window for simplex events to 48 hours. As we explained, in recent years the Commission has noticed an uptick in simplex outage reports, which suggests that our expectations that providers would implement best practices for resolving such events when we established the five-day reporting window were not met. Thus, in the Notice, we concluded that our proposed 48-hour window would ensure that providers properly prioritize service maintenance and restoration in the event of simplex outages.

16. Most commenters oppose our proposal to reduce the reporting window from five days to 48 hours. Several commenters argue that factors such as weather, other hazardous conditions, or the complexity of repair tasks could render a 48-hour target unattainable in many cases. Other commenters claim that a 48-hour window would unnecessarily increase reporting burdens as well as compliance costs without corresponding benefits. Some commenters maintain that, rather than tighten the window, the Commission should eliminate outage reporting for simplex events entirety. And, although Verizon supports the status quo, it argues that a three-day threshold would be preferable to a 48-hour threshold as a way to better accommodate service providers' practices and technician maintenance and work schedules.

17. We conclude that simplex outage reporting remains an important part of the situational awareness matrix that NORS provides. The Commission has a responsibility to ensure network reliability and resiliency, including in major transport facilities designed with a built-in path protection. Over the years, we have observed a rise in simplex event outage reports as the rule stands now with the five-day reporting window, which appears to indicate that providers filing these reports are not able to repair the simplex events in a period less than five days.

18. We are persuaded by the record, however, that moving the reporting window from five days to 48 hours may not strike the proper balance between providers' best practice-driven repair and maintenance capabilities and incentives, and the Commission's situational awareness needs and network reliability-assurance goals through simplex event outage reports. We acknowledge, as some commenters argue, that factors such as weather or hazardous conditions impact service repair. We cannot, however, ignore that extended simplex events jeopardize service reliability.

19. Accordingly, we adopt a four-day interval for simplex outage reports. Further, compliance with this revised interval shall begin no later than six (6) months after OMB approval. In this regard, we reject proposals by some commenters to maintain the current five-day window, which we view as inadequate to incent timely repair, and we reject those calls for eliminating simplex reporting altogether. The Commission has a responsibility to ensure network reliability and resiliency, including in major transport facilities designed with built-in path protection, and simplex reporting is a needed and helpful tool used to meet this responsibility.

20. Currently, we require that providers report simplex events lasting longer than 5 days; we have not required reports for events repaired within five days. A provider may experience a short simplex event, conduct necessary repairs within five days and not be obligated to report the event under part 4. We no longer believe that our five-day reporting window for simplex outages is an adequate measurement tool to ensure network reliability and resiliency. The four-day reporting window that we adopt today is designed to alert the Commission to trends that include significant outages, while also accommodating Verizon's suggested need for providing a reasonable amount of time to address the outages before the reporting threshold is met.

21. To determine if a wireless network outage is reportable based on meeting the 900,000 user-minute threshold, a wireless service provider must calculate the number of users “potentially affected” by the outage. Pursuant to Sections 4.7(e) and 4.9(e), providers should perform the calculation “by multiplying the simultaneous call capacity of the affected equipment by a concentration ratio of 8.” This call capacity measurement is typically undertaken at the mobile switching center (MSC). As wireless technologies have evolved, however, providers have made different technological and engineering choices, resulting in a variety of methods by which they measure simultaneous call capacity. These developments have led to a lack of methodological consistency among providers in reporting outages. Such inconsistencies compromise the Commission's ability to detect and analyze wireless network outage trends.

22. We proposed in the Notice to adopt a more standardized, technologically neutral method for calculating the number of users “potentially affected” by a wireless network outage. Under the first approach, wireless providers would calculate potentially affected users by multiplying the number of disabled cell sites by the average number of users the provider serves per site. Under the second approach, providers would use the Visitor Location Register (VLR) to determine the actual number of users that were being served at each affected cell site when the outage commenced.

23. The majority of commenters support our proposal to adopt a more standardized method for wireless providers to calculate the number of users “potentially affected” by an outage. While ATIS appreciates our goal, it does recommend that wireless providers should be allowed to pick the method they want to use. CCA opposes the proposal on the basis that it would create two separate metrics, one for Public Safety Answering Point (PSAP) outages and the other for all other outages, which would complicate outage reporting or impose administrative burdens on carriers, particularly smaller carriers with limited staff support.

24. The majority of commenters also support adopting the first approach to calculating potentially affected users—multiplying the number of disabled sites by the average number of users per site. Commenters universally oppose the VLR option for determining the number of potentially affected users in a wireless outage. Several commenters assert the use of the VLR makes the calculation more complex, would potentially be costly to implement, and would likely lead to potentially inconsistent reporting. Many commenters also point out that the VLR is being phased out, as wireless technology advances.

25. We believe that a more standardized, technologically neutral method for calculating the number of “potentially affected” users for wireless network outages is critically important to ensure consistency in reporting across providers, regardless of the technological differences in their networks, and that such consistent reporting will enhance our situational awareness through more uniform, accurate, and reliable NORS data. To accomplish these aims, we adopt the first of our proposed approaches: to determine if an outage meets the 900,000 user-minute threshold, a wireless provider must multiply the number of macro cell sites disabled in the outage by the average number of users served per site, which is calculated as the total number of users for the provider divided by the total number of the provider's macro cell sites. For purposes of this calculation, wireless providers should include only traditional cell tower deployments, i.e., macro cell sites, and not small cell sites (e.g., femto-cells, pico-cells, and micro-cells) or other wireless architecture (e.g., Wi-Fi, Distributed Antenna Systems). Compliance with this revised methodology shall begin no later than nine (9) months after the Effective Date of the rules.

26. We agree with commenters that this approach is simpler than the current measurement and can be implemented at little to no additional cost. This simplicity of measurement and implementation promotes consistent outage reporting that should facilitate accurate analysis of the NORS data we receive. Conversely, as several commenters noted, using data from the VLR (i.e., the second approach) would be costly to implement, less likely to provide consistent data among providers and, in any event, would be less useful over time because the VLR itself is currently being phased out.

27. Given that the method we adopt is relatively straight-forward for carriers to calculate and will result in uniform, consistent reporting, we disagree with ATIS that wireless providers should be allowed to pick the method they want to use. Such an approach would lead to inconsistent data among providers, thwarting the very goal of adopting the new metric. Also, given that we believe, and providers tend to agree, that the new method will be easy to implement, we disagree with CCA that implementing a new, uniform method for calculating the number of “potentially affected” users with wireless outages would complicate outage reporting or impose administrative burdens on carriers, particularly smaller carriers with limited staff support. Although we are sympathetic to CCA's concern that wireless providers will have to use one calculation for wireless outages generally and another for those affecting PSAPs, the scenarios are different and warrant different treatment. One calculation ensures the Commission has situational awareness of network health holistically, while the other provides direct public safety/emergency preparedness awareness through 911-specific outage reporting. We intend to monitor the need to revisit this reporting scheme based on experience, as small cells become capable of covering more capacity.

28. Finally, we note that Verizon and T-Mobile each propose alternatives that depart from using the “user-minutes” standard. Verizon suggests simply notifying the Commission whenever 30 macro cell sites go out in a particular geographic area, such as a Cellular Market Area (CMA) or Partial Economic Area (PEA). We believe the approach we adopt effectively achieves Verizon's simplicity objectives through per-cell site reporting, maintaining the user-minute reporting standard common across various platforms (wireless, wireline, VoIP, satellite, etc.). Moreover, Verizon's threshold of 30 cell sites within a CMA or PEA would not cover many—if not most—rural areas. T-Mobile advocates allowing carriers to measure outages “using real-time data where technically feasible,” and when it is not feasible, to use the approach we adopt herein. We are concerned that, too often, such data will not be available, which will result in only a few carriers reporting using this data, resulting in the kind of reporting inconsistency we seek to avoid.

29. Under our rules, wireless service providers must report any outage of at least 30 minutes duration that “potentially affects” a 911 special facility (i.e., PSAP). An outage potentially affects a 911 special facility whenever, among other things, there is a loss of communications to a PSAP potentially affecting at least 900,000 user minutes. Shortly after the Commission adopted part 4, Sprint asked for clarification of this requirement when a wireless outage affects only some of the subtending PSAPs. Specifically, Sprint proposed that wireless providers be able to allocate the users covered by the MSC equally among the number of subtending PSAPs affected by the outage.

30. Sprint's proposed method of allocation, however, does not take into account the fact that PSAPs vary greatly in the number of users served. Therefore, in the Notice we proposed that wireless providers can allocate capacity when only one subtending PSAP is affected, but if they do, they must do so in reasonable proportion to the size of the PSAP in terms of number of users served. As we stated in the Notice, this calculation method is consistent with what we observe to be the current reporting practice of most providers. Several commenters support our proposal to allocate capacity to each subtending PSAP in reasonable proportion to its size in terms of number of users served.

31. We adopt our proposal and allow wireless providers to allocate capacity when an outage only affects some PSAPs served by an MSC, so long as the allocation is done in reasonable proportion to the size of the subtending PSAP(s) in terms of number of users. As noted by the California Public Utilities Commission (CPUC), PSAPs vary greatly in size nationwide, and allocating capacity to subtending PSAPs will limit reporting to those significant outages that potentially impact public safety and for which the rules are intended. In determining the number of potentially affected users served by a PSAP, providers can use various sources for the data so long as the method they choose provides a reasonable estimate of the relative size of the PSAP and can be occasionally updated. Reasonable estimates could be based on but are not limited to the following sources: the subtending PSAPs' relative size determined by using the number of 911 calls sent to the PSAP on a historical basis; the number of 911 calls to each PSAP during the outage (if available in real time); or the population served by each PSAP determined either through subjective data or extrapolated from census or other objective data sources that would be relied upon by a population statistician. Any of these methods should account for the relative size of the PSAP affected by the outage. Compliance with this revised allocation standard shall begin no later than nine (9) months after the Effective Date of this requirement.

32. We decline to adopt an across-the-board allocation standard, such as Sprint apparently suggests; however, providers may use the Sprint allocation approach or an alternate method that provides a reasonable estimate of the relative size of the PSAP. Providers must inform the Commission, in writing, of the approach they are using via the first NORS filing in which they are reporting data based on their approach. While Sprint's approach may be simple to calculate, dividing simply by the number of subtending PSAPs would not capture the significance of the outage. Only by allocating capacity based on the size of the PSAP will the estimate reflect an accurate picture of the size of the outage. We recognize, as ATIS and CTIA note, PSAP boundaries can fluctuate and the number of users allocated to the PSAP may change. Based on our experience dealing with PSAPs on a regular basis, we do not anticipate that these fluctuations will be significant or occur frequently, although the Commission would revisit this issue in the future if necessary. So long as the method reasonably captures the relative size of PSAPs, the method of allocation will be acceptable and, to the extent that it is needed, providers can work with Commission staff informally for further guidance.

33. On January 26, 2011, a significant snow and ice storm hit the Washington, DC metropolitan area, causing widespread problems for all affected counties and cities in a several hundred mile swath from central Virginia through Baltimore, Maryland. These problems included the failure of roughly 10,000 wireless 911 calls carried over a major wireless provider's network to reach PSAPs in Montgomery and Prince George's Counties, Maryland. The provider did not report these outages, nor the problem(s) that caused them, to either the Commission or to affected PSAPs.

34. Inquiry into the outages revealed the root cause: cascading, “wink” failures of the Centralized Automatic Message Accounting (CAMA) trunks used in the provider's 911 network architecture. “Wink” failures occur when a selective router attempts to deliver a 911 call to a PSAP over an idle trunk, but the hand-off protocol between the router and the PSAP (the “wink”) ultimately fails. More specifically, this means that the PSAP's customer premises equipment (CPE) fails to communicate to the selective router that it is “off-hook”, i.e., open and able to receive ANI and ALI information associated with the 911 call. This can occur when the CPE fails to recognize quickly enough that a 911 caller has disconnected—i.e., that an “on-hook” condition has become an “off-hook” one—and, thus, that that a new 911 call can be received (“seized”). The result is a miscommunication that that particular trunk is unavailable to receive a call from the 911 selective router (a “no-wink” failure), which then pushes the call to the next best available trunk. If a call is re-presented to the original trunk that had the no-wink failure (as is common in heavy call volume periods) and the same problem occurs (a “double wink” failure), the 911 selective router will stop attempting to deliver calls via that trunk. If a heavy call volume event persists, the problem can cascade to all trunks serving a PSAP, leading to reduced, or total loss of, call-handling capacity within the trunk groups serving a particular PSAP. CAMA trunk arrangements are commonly used in legacy wireline network architecture for 911 call delivery, so the “wink” failures during the January 2011 storm are not specific to the provider's network trunk arrangements.

35. In the Notice, the Commission proposed to codify in part 4 how to address this situation, and asked commenters to discuss specific rules proposed toward that end. Specifically, we sought comment on whether to amend Section 4.5(e)(1) to specify when “degradation of communications to a PSAP constitutes a reportable outage” under part 4. By doing so, we rejected the notion that PSAP-related outages need only be reported “when a PSAP is rendered unable to receive any 911 calls for a long enough period to meet the reporting threshold.” We proposed revising Section 4.5(e)(1) to provide that “any network malfunction or higher-level issue that significantly degrades or prevents 911 calls from being completed constitutes a `loss of communications to PSAP(s),' regardless of whether the PSAP is rendered completely unable to receive 911 calls.”

36. Many public safety, state, and carrier commenters agree that the Commission should specify the circumstances under which a “loss of communications” to PSAPs rises to the level of “significant degradation” such that it would be reportable under part 4. APCO advises that “knowledge of a significant degradation of service short of a complete failure is of high value to PSAPs and emergency managers,” a sentiment echoed by NASNA, which believes that “it should not matter” whether a PSAP has suffered a complete or only a partial loss of ability to receive 911 calls.

37. Comcast, CenturyLink and XO Communications do not oppose such an approach, so long as the Commission (i) does not require reporting when re-routing is available for all calls to PSAPs, (ii) requires reporting only when an outage that meets the 30 minute/900,000 user minutes threshold “actually” impacts emergency call handling or completion, and (iii) gives providers sufficient lead time to make the necessary adjustments to ensure compliance (e.g., through properly configuring alarms on trunks, etc.).

38. On the other hand, wireless providers are largely opposed to the proposal to include “loss of communications” to PSAPs under Section 4.5(e). Sprint opposes the proposed rules on the grounds that “CMRS providers do not have visibility into PSAP facilities on the PSAP side of the point of demarcation, so CMRS providers would not be able to report on whether a PSAP is experiencing an issue that significantly degrades or prevents 9-1-1 calls from being completed.” Several providers maintain that part 4 reports should only be required where a PSAP is completely unable to receive 911 calls.

39. Part 4's purpose is to collect information on “service disruptions that could affect homeland security, public health or safety.” To meet this goal, the rules must include the kinds of 911 call-impacting trunk failures at issue in the January 2011 DC area storm. Indeed, subsequent work done by the Commission (and, eventually, by industry vis-à-vis ATIS) to identify, study and develop solutions to the CAMA trunk failures is a model of what could—and should—have happened under part 4: A “systematic analysis of the conditions that le[d] to [significant communications] degradations [that] help[ed] reveal potential solutions.” The ability to analyze, develop solutions, and work with providers to implement those solutions enhances public safety.

40. With respect to 911-related outages, our rules are quantitative and qualitative in scope and application, and define reportable outages both in terms of total connectivity failure and qualitative failures. Consistent with that approach, we adopt the proposal in the Notice to specify that a “loss of communications” should trigger part 4 reporting obligations in the same way as a “network malfunction or higher-level issue that significantly degrades or prevents 911 calls from being completed to PSAPs.” We provide that a “loss of communications” occurs when at least 80 percent of a 911 service provider's trunks serving a PSAP (i.e., trunks over which the 911 service provider has control) become impaired to the point that they cannot support 911 call delivery in accordance with the Commission's rules, including the information typically delivered with 911 calls. In other words, a 911 service provider would not need to report when 80 percent of its trunks go down if the remaining 20 percent could support delivery of 911 calls, including the number and location information, but it must report if not all 911 traffic can be re-routed, or if the re-routed traffic cannot be delivered without stripping it of number or location information. We disagree with Comcast that the Commission must further define “impairment” of a 911 call for service providers to comply with the reporting rules. Moreover, this approach maintains the thrust of the rule as currently written: If sufficient re-routing is available for all affected 911 calls and no necessary information is stripped from those calls, then providers are not required to report to the Commission, irrespective of the percentage of available trunk capacity.

41. We find this to be a clear, objective metric about which 911 service providers would “become reasonably aware pursuant to normal business practices,” such as the installation and monitoring of trunk alarms. We do not intend to list, define, or otherwise impose particular compliance solutions for providers, consistent with the Commission's long-standing practice of deferring to network service providers in the design and engineering of their networks. Trunk alarms are already ubiquitous as a network reliability “best practice,” and would presumably enable providers to determine when the 80 percent threshold is approaching or is reached in a given event. We acknowledge Sprint and Verizon's comments about needing visibility into trunks to know when a “loss in communications” occurs, but we note that this rule applies to 911 service providers, which, by definition, do have visibility into such trunks. We also believe that this metric strikes a fair balance between proposals from the public safety community who believe the bar should be set as low as possible and include even non-critical outages, and 911 service providers who want only to report in instances of complete 911 call failure across all trunks (which would not include the January 2011 incident described above).

42. We also agree with CenturyLink that an 80 percent threshold will not be overly burdensome so long as providers are given the lead time necessary to manage the costs of solution development and implementation needed for their particular networks. To allow time for compliance with other 911-related Commission requirements, CenturyLink initially proposed a one-year implementation deadline for this requirement. We recognize that some providers will be able to move faster and achieve compliance well before one year, given present or scheduled investments in necessary facilities, but others will need more time to comply with the requirements. Further, we note that providers have had ample time to comply with the requirements underlying CenturyLink's concern, but we nevertheless feel a one-year implementation timeframe is appropriate to allow flexibility for smaller carriers. Thus, because it does not interfere with other part 4 reporting requirements, we find that a one-year implementation timeframe should be sufficient for both small and large providers to achieve compliance, and incorporate that timeframe into our rules. Accordingly, compliance with this revised metric shall begin no later than one year after OMB approval.

43. Finally, we disagree with CTIA's argument that our concerns are “speculative”: The 10,000 911 call failures associated with the January 2011 DC area storm had a significant real world impact but was nevertheless deemed non-reportable by a licensee. Nor do we believe our proposals are “unworkable”: 911 service providers should reasonably be expected to have adequate visibility into PSAP trunk failure.

44. A major underlying goal of outage reporting generally, and for reporting on “special offices and facilities” in particular, is for the Federal government—including Federal government users—to have situational awareness of events that impact homeland security and the nation's economic well-being. When the Commission adopted rules in 2004, the Commission deferred to the National Communications System (NCS) to determine which facilities would be considered major military installations or key government facilities, and would, under certain conditions, report “mission-affecting outages” to the NCS. The NCS would in turn forward reports of those outages to the Commission. However, the NCS was dissolved in 2012. Accordingly, in the Notice, the Commission sought comment on how it should thereafter identify “special offices and facilities” for part 4.

45. We note that reporting requirements applicable to “special offices and facilities” have been an integral part of part 4 since the rules' adoption in 2004. As it relates to covered airports, the rules stated that all outages lasting 30 minutes or longer that “potentially affect communications” must be reported, and that “mission-affecting outages” to certain government facilities and military installations (as determined by NCS) also were covered by part 4.

46. We proposed to classify as “special offices and facilities” those facilities enrolled in or eligible for the Telecommunications Service Priority (TSP) Program, which prioritizes the restoration and provisioning of circuits used by entities with National Security/Emergency Preparedness (NS/EP) responsibilities and duties. We also asked whether there were alternative classification frameworks that would be more suitable, including broadening the scope of the definition of “special offices and facilities” to include those facilities that are guaranteed priority restoration under “TSP-like” provisions in service-level agreements. We concluded by requesting comment on our assumption that redefining the term “special offices and facilities” to include some variant of TSP-enrolled and/or-eligible facilities would not have an appreciable cost impact.

47. Comments on our “special offices and facilities” classification proposal range from a call to eliminate reporting all together, to multiple alternatives for identifying the subject facilities. Most commenters who oppose the special facilities reporting proposal (to include all TSP enrollees and eligible participants) feel that it would subject too many entities to the rules, without a corresponding increase in public safety or situational awareness; would needlessly divert a provider's resources to tracking down and tagging circuits; and would require providers to identify tens of thousands of new, potentially TSP-eligible parties.

48. Many commenters express support for our proposal so long as the Commission limits applicability of the rules to entities that are (1) enrolled in the TSP program, and (2) only those designated at the highest TSP priority levels (i.e., Levels 1 and 2). In its comments, Comcast suggests that the Commission include, in any new or amended rule, only those TSP participants that constitute “major military installations” or “key government facilities” as “special offices and facilities:”

49. As a preliminary matter, we reject comments suggesting the “special offices and facilities” reporting rule itself is outdated and ought to be eliminated altogether. Under the rules that have been in place since 2004, neither the NCS nor its member agencies appear to have followed the applicable portions of Sections 4.5 (on self-identification as a “special office or facility”) and 4.13 (on member agencies reporting qualifying outages to the NCS, and NCS using its discretion to forward those outage reports to the Commission), so that previous “special offices and facilities” formula did not work as the Commission intended. We do not believe, however, that this fact in and of itself signifies that reporting outages at special offices and facilities is not useful. Rather, we should fix the rule, not eliminate it, to facilitate its original goals. Reporting on “special offices and facilities” (as amended) is an important component in our efforts to promote public safety.

50. Today, we characterize “special offices and facilities” as those enrolled in Levels 1 or 2 of the TSP program. To close the significant reporting gap on special offices and facilities, we proposed initially to classify all facilities enrolled in, or eligible for, the TSP program as “special offices and facilities” for part 4 reporting purposes. As we observed in the Notice, the TSP program prioritizes the restoration and provisioning of circuits used by entities with NS/EP responsibilities and duties and comprises five priority levels, with Levels 1 and 2 reserved for critical national security and military communications and the remaining levels dedicated to the protection of public safety and health and the continued functioning of the economy. As the Bureau previously has noted, “[v]ery few circuits receive a TSP priority Level 1 or Level 2 assignment.” Compliance with this requirement shall begin no later than eighteen (18) months after OMB approval.

51. We believe that outages affecting highest-priority TSP enrollees (i.e., Levels 1 and 2) are the types of outages for which we must have situational awareness; the communication security of TSP enrollees affects our nation's security leadership and posture, its public safety and public health, and our national economic system, and the Commission must be aware of any trends, through NORS analysis, that relate to certain TSP enrollees. As commenters note, were we to adopt a formula to cover all entities that were either enrolled or eligible to be enrolled in the TSP program, the number of reportable events would overwhelm both the covered parties and available Commission resources, with no concomitant increase in public safety or national security. Even to include parties that are enrolled at all priority levels in the program would have posed significant challenges. Thus, we believe limiting coverage to only Levels 1 and 2 strikes an appropriate balance between the untenable position of eliminating any rules applicable to “special offices and facilities,” and extending the rules to all entities that are enrolled or eligible to be enrolled in the TSP program at any of the five priority levels, which we concede could incur a significant cost for a minimal benefit. We find that limiting our rule to Levels 1 and 2 will not present widespread technical, administrative, or financial burdens to covered parties.

52. Section 4.13 directs special offices and facilities to report outages to the now-dissolved NCS, which could then forward the reported information to the Commission at its discretion. Because our rules separately impose requirements on communications providers to report outages that potentially affect “special offices and facilities,” and in light of the elimination of the NCS, we proposed deleting Section 4.13 “as redundant with respect to information that providers are already required to supply, and obsolete with respect to obligations regarding the NCS.”

53. We agree with commenters that we should remove Section 4.13 from our rules as redundant of other provisions within part 4, and accordingly will delete it. While supporting elimination of Section 4.13, AT&T added that we should incorporate elsewhere in the rules a requirement that “affected facilities” initiate contact with the communications provider about the disruption in service. We decline to adopt AT&T's proposal, finding it would unnecessarily preclude alternative methods that providers may use to receive information about outages without corresponding benefit.

54. Airports included in the Federal Aviation Administration's (FAA) National Plan of Integrated Airports Systems (NPIAS) are designated as falling into one of four categories: Primary commercial service (PR), non-primary commercial service (CM), reliever (RL), and general aviation (GA). Currently, airports designated as PR, CM, and RL are defined as “special offices and facilities” for purposes of Section 4.5(b) of the Commission's rules, and so are subject to outage reporting requirements set forth in Sections 4.11 and 4.13 of the Commission's rules that do not apply to outages affecting other kinds of facilities.

55. In the Notice, we proposed two significant changes to our reporting requirements for outages that affect airport communications. First, we proposed amending Section 4.5(b)'s definition of the types of airports considered as “special offices and facilities,” to narrow its focus to airports designated as PR. Second, we proposed to clarify that reportable outages are those that impact “critical communications” at those airports.

56. Regarding narrowing the scope of airports to only those designated “PR,” we noted that most reports concerned outages not significant enough to pose a substantial threat to public safety, particularly at smaller regional airports, and thus we sought comment on amending the definition of “special offices and facilities” to exclude all airports other than those designated “primary commercial service” airports (i.e., the nation's most heavily trafficked airports, where even minor degradations in critical communications can pose grave threats to public safety and national security) in the NPIAS.

57. With respect to our proposal to clarify that only outages that potentially affect critical communications at an airport should be reported, we sought comment on defining the phrase “critical communications.” From 1994 through 2004, under 47 CFR 63.100(a)(6), the Commission defined outages affecting “critical communications” at airports. We also noted that, were we to clarify that our intent was to receive reports only of outages that affected critical communications at airports, then few (if any) outages at an airport would rise to the threshold of being reportable, which in turn would represent an affirmative cost savings to communications providers.

58. In 2004, the Commission proposed to incorporate, but ultimately did not adopt, the Part 63 definition of an outage that “potentially affects” an airport:

59. Most commenters agree that we should adopt the proposal in the Notice to narrow the scope of airports to only those designated PR in NPIAS. On the issue of the types of communication outages that would be reportable, commenters agree that only outages that potentially affect critical communications at an airport should be considered, but raised some concerns. CenturyLink, for example, notes that while it generally supports the proposal to clarify what constitutes “critical communications,” “there is some question on the details of the NPRM's proposal to define what outages potentially affect an airport and would be reportable,” believing the 2004 Part 4 NPRM definition was not sufficiently clear on how providers would be able to assess when 50 percent of an airport's air traffic control links are disrupted, along with vagueness on how providers would be notified of airports “deemed important” by the FAA.

60. On whether to narrow the scope of airports covered by our rules, we agree that the rule as currently written is unnecessarily broad. The airport-originating reports received by the Commission in recent years have generally related to outages within the retail sections of an airport. We agree with commenters that requiring providers to report these outages represents a substantial financial and administrative burden on those providers. Moreover, we do not believe that eliminating communications outage reporting from non-primary commercial service and reliever airports will negatively impact the safe operation of our nation's airports and air travel system. We therefore amend Section 4.5(b) to limit the requirement of reporting outages that “potentially affect” an airport to only those determined by the FAA to provide primary commercial service.

61. On the issue of limiting the type of communications subject to this rule, we clarify that our concern is only with outages that potentially affect critical communications at covered airports. We note that the Commission first adopted the “five-point” definition in 1994, to provide clarity and thoroughness in reporting, as 47 CFR 63.100(a)(6), although it did not apply this definition in 47 CFR part 4.5(c). In the Notice, we posited that, even though the Commission refrained from adopting it in 2004, the definition from former rule 47 CFR 63.100(a)(6) would be appropriate to make clear that for reporting purposes, only outages that impact critical communications at an airport are of concern. We find that the concerns raised by CenturyLink about ambiguity in the definition from the 2004 Part 4 Notice are unfounded. Regarding CenturyLink's concern about a provider's ability to ascertain when 50 percent of an airport's control links are disrupted, we conclude that providers have sufficient ability to quantify outages at this level, which is a rational expectation of a provider's network monitoring practices and capability. Thus, the definition the Commission adopted in 1994 in part 63, used through 2004, and proposed to incorporate into Part 4 in 2004, and does incorporate here, provides necessary and sufficient clarity. We note that Section 63.100(a)(6) had long been in force and that carriers should already be familiar with this definition. For example, we note Sprint's 2004 petition for reconsideration requesting that the Commission, inter alia, require reporting only in those scenarios defined by the “previous outage reporting rules, see 47 CFR 63.100(a)(6).” Regarding CenturyLink's concern regarding whether an airport has been deemed “important” by the FAA, we believe our narrowing the scope of airports covered by our rules resolves this issue, adding only that providers that serve airports must make themselves aware of the category of those airports (i.e., we do not anticipate or expect the airport itself to notify providers as to the airport's FAA classification).

62. We note that commercial aviation is increasingly dependent on information systems that are not collocated with airport facilities and invite comment in the related Further Notice as to whether non-airport critical aviation information facilities should be eligible for outage reporting perhaps as enrollees in the previously mentioned TSP Levels 3 and 4.

63. In 2004, the Commission determined that because the critical communications infrastructure serving airports is landline-based, satellite and terrestrial wireless communications providers were exempt from reporting outages potentially affecting airports. CTIA, Cingular Wireless and Sprint each filed petitions arguing that wireless providers should be exempt from reporting outages pertaining to all other “special offices and facilities,” on the grounds that the rationale for excluding wireless carriers from outage reporting for airports applies equally to all special offices and facilities, that is, that wireless carriers lacked dedicated access lines to all special offices and facilities. In the Notice, we asked whether, in spite of the continued growth in the use of wireless networks, we should extend the satellite and terrestrial wireless exemption to all “special offices and facilities.”

64. Commenters on this issue all agree that the current exemption afforded satellite and terrestrial wireless providers with respect to airports ought to be retained, and that such providers further should be exempt from reporting outages potentially affecting all special offices and facilities. Sprint supports extending the wireless providers' exemption to all special offices and facilities, arguing that, as with airports, “the communications infrastructure serving other special offices and facilities remain primarily `landline based,' ” and that unless a wireless carrier provides a dedicated access line to a special office or facility, it has no way of knowing whether one of its phones was being used by personnel at such office or facility.

65. Although wireless service has become ubiquitous in many respects throughout the United States, we have not observed special offices and facilities adopting such service for their critical communications, and otherwise abandoning wireline-based communications. As CTIA points out, the Department of Defense (DoD) commented in our Technology Transitions proceeding that DoD and federal executive agencies continue to rely heavily on wireline TDM-based networks and services and would do so for the foreseeable future. We will, therefore, continue to exempt satellite and terrestrial wireless providers from reporting outages potentially affecting airports, and will extend that exemption to all special offices and facilities. To the extent our decision today responds affirmatively to the requests of CTIA, Cingular, and Sprint to exempt wireless carriers from being required to report outages potentially affecting all special offices and facilities, we grant their petitions.

66. Section 4.2 of our rules provides that reports filed in NORS are presumed confidential, and thus withheld from routine public inspection. This presumption recognizes both the “likelihood of substantial competitive harm from disclosure of information in outage reports” and the Commission's concern that “the national defense and public safety goals that we seek to achieve by requiring these outage reports would be seriously undermined if we were to permit these reports to fall into the hands of terrorists who seek to cripple the nation's communications infrastructure.” The Commission routinely shares NORS reports with the Office of Emergency Communications at the Department of Homeland Security (DHS), which may “provide information from those reports to such other governmental authorities as it may deem to be appropriate,” but the Commission does not share NORS information directly with state governments. In 2009, the CPUC filed a petition requesting that the Commission amend its rules to permit state agencies to directly access the NORS database.

67. The Notice proposed to grant state governments “read-only access to those portions of the NORS database that pertain to communications outages in their respective states,” conditioned on a certification that each state “will keep the data confidential and that it has in place confidentiality protections at least equivalent to those set forth in the federal Freedom of Information Act (FOIA).” The Commission sought comment on this proposal, as well as whether states' use of NORS data should be restricted to activities relating to its “traditional role of protecting public health and safety” and, if so, what activities such a role would encompass. In addition, the Commission sough comment on whether information collected under part 4 should be shared directly with the National Coordinating Center for Communications (NCC), a government-industry initiative led by DHS representing 24 federal agencies and more than 50 private-sector communications and information technology companies.

68. Commenters generally support providing state and federal officials with direct access to NORS, as long as there are sufficient security and confidentiality protections to prevent disclosure to competitors or hostile parties. The National Association of Regulatory Utility Commissioners, for example, notes that it unanimously adopted a resolution in support of the CPUC Petition, adding that “[w]hile California filed the Petition on its own behalf, and some States do receive certain outage information directly from carriers, all States share the need for immediate, secure and confidential access to the service outage detail provided in NORS.”

69. Commenters disagree, however, on many of the details of implementation for sharing information with state entities, including the nature and extent of confidentiality measures and whether the Commission should attach conditions to the use of information obtained from NORS. Service providers argue for a broad range of conditions such as: Limitations on the number and job description of state personnel with access to NORS; security training or nondisclosure agreements for such personnel; data breach notifications to the Commission, to affected service providers, or to both; tracking or auditing of states' use of NORS information; and loss of access or other penalties for states that fail to maintain confidentiality. Industry commenters also question whether a certification of confidentiality protections “at least equivalent to FOIA” would be an effective safeguard in light of variations in state open records laws and the tendency of some state courts to construe such laws in favor of disclosure. Consequently, several commenters urge the Commission to explore mechanisms other than FOIA and its state equivalents as a basis for stronger legal protections for NORS data.

70. Some commenters urge the Commission to preempt state open records laws to the extent they could allow disclosure of NORS information, while others suggest “a rule with language similar to the statutory language that Congress enacted to govern a federal agency's sharing of homeland security information with a state government.” Commenters point to several other contexts in which the Commission has shared information on a confidential basis with state counterparts, such as the existing processes for sharing state-specific Form 477 data on broadband subscribership and numbering resources from the North American Numbering Plan Administration. But the record also reflects concerns that these models may be inadequate to provide states with real-time access to NORS data or to provide state-specific data on outages affecting multiple states. Intrado further suggests that outage information could not realistically be shared with states on a confidential basis without an extensive redesign of the NORS database and associated form fields.

71. States and service providers also dispute whether use of NORS data should be limited to the states' “traditional role of protecting public health and safety,” a phrase that first appeared in the CPUC Petition but here receives support from industry commenters as a condition on states' access to NORS. AT&T, for example, comments that “the Commission should restrict state commissions' use of the NORS data to evaluating the cause of outages to monitor communications network functionality within a state.” State governments generally agree that they should only receive information on outages within their geographic boundaries but oppose other limitations on their use of NORS data. Michigan, for example, asserts that “[r]estricting the information that states can access regarding service outages would obscure the true picture of the providers' services . . . rendering the reporting—and any conclusions drawn thereon—incomplete.”

72. Commenters also disagree on the extent to which direct access to NORS data should replace state-level outage reporting requirements. Without routine access to NORS data, many states independently require communications providers to file network outage reports with their public utility commissions or similar agencies. Industry commenters argue that “sharing appropriate data with state agencies could minimize the burden on providers for filing multiple reports given that the content of some state outage reporting overlaps with Part 4 reporting,” but also that “the Commission should condition a state's access to NORS data on the state's waiver or elimination of any independent outage reporting requirement imposed by state law.” Intrado further contends that “[d]ual reporting is unnecessary, unduly expensive and inappropriate,” and that “[n]ot every state needs access to NORS.” State commissions tend to disagree, generally arguing that states should remain free to adopt their own independent requirements.

73. The record reflects broad agreement that state and federal partners would benefit from more direct access to NORS data, and we conclude that such a process would serve the public interest if implemented with appropriate and sufficient safeguards. But, with competitively sensitive information and critical communications infrastructure at stake, we also conclude that this process requires more careful consideration of details that may determine the long-term success and effectiveness of the NORS program. Accordingly, while we agree that other FCC processes may be helpful models in developing appropriate procedures for sharing NORS data, we are not persuaded that existing processes for information sharing can be replicated in the context of NORS without important refinements.

74. In light of the significant security and confidentiality concerns described above, as well as federalism concerns that may be inherent in any national coordination of outage reporting requirements, we find that the Commission's part 4 information sharing proposals raise a number of complex issues that warrant further consideration. We seek comment in the related Further Notice with respect to how NORS data from broadband providers could be properly shared with state and federal entities other than DHS, including instances where state law may prohibit information sharing. Furthermore, to assist the Commission in addressing these issues, we direct the Bureau to study these issues, and develop proposals for the Commission consideration regarding how NORS filings and information collected from all part 4 providers could be shared in real time with state commissions, with other federal partners, and with the NCC, keeping in mind current information sharing privileges granted to DHS.

In the Notice we provided estimates of the annual industry-wide cost of adoption of the proposed rules. In total, we estimated that industry-wide reporting costs would fall by $307,520 due to a net decrease of 1,922 reports per year. While several commenters argued that our per-report cost estimates were too low, only AT&T provided a revised quantitative estimate. AT&T argued that it spends approximately twelve hours to prepare and file outage reports, in contrast to our estimate of two hours. Although we are not convinced that twelve hours are necessary, we note that using AT&T's figure, the resulting decrease in costs would be six times our estimate, or $1,845,120. In either case, we conclude that the rule changes adopted in this Report and Order will have the overall effect of reducing reporting costs.

75. As to benefits, our part 4 rules enhancements will ensure the Commission receives the appropriate type and quality of outage and operational status information to allow us to continue to fulfill our statutory obligation to promote “safety of life and property” by protecting the nation's communications networks. The current part 4 outage reporting rules played a significant and well-documented role in the Commission's successful efforts to promote more reliable and resilient communications networks. The Commission's receipt of data on major transport facility outages, wireless outages, outages that significantly degrade communications to PSAPs, and outages affecting special offices and facilities will enable it to adapt this established practice to a wider cross-section of the critical communication infrastructure.

76. We further believe that the benefits of the adopted rules will substantially exceed the minimal costs expected to be imposed by some of these rules, and we expect that the combined effect of all these rules will be to reduce the costs imposed on affected parties. Outage reporting provides the Commission with critical data on communications reliability that it has no means of gathering on a consistent and reliable basis from any other source. Absent these rules, the Commission lacks adequate visibility into the reliability of major transport facilities and wireless communications infrastructure, and has inadequate visibility into degradations of special offices and facilities as well as communications to PSAPs. This lack of visibility hinders the Commission's ability to discharge its public safety responsibilities. The data gathered by these outage reports will permit Commission staff, working closely with providers and industry working groups, to identify and address systemic vulnerabilities. Such collaborative efforts have led to measurable improvements in network reliability and resiliency, and to the formulation of policies to promote more reliable and secure communications. Moreover, outage reports, particularly in the early stages of a communications disruption, provide critical situational awareness to the Commission that enable it to participate effectively in emergency response and service restoration efforts.

77. In January 2005, in response to the 2004 Part 4 Order, Sprint filed a petition requesting that, among other issues, the Commission “clarify that wireline carriers are only required to report outages affecting airports when such outages `disrupt[ ] 50% or more of the air traffic control lines or other FAA communications links' as was the case under the previous outage reporting rules, see 47 CFR 63.100(a)(6).” Sprint argues that in adopting the new part 4 rules, “[t]he Commission did not mention, let alone justify, doing away with the Section 63.100(a)(6) limitation that carriers report only outages affecting the critical communications facilities serving airports” and urges the Commission “to clarify that it had no intention of removing the Section 63.100(a)(6) language from Part 4 that limits reporting of airport outages to disruptions in communications being carried over critical infrastructure serving such airports, i.e., air traffic control or other FAA communications links[,] and to restore such language to Section 4.5 of the rules.”

78. As noted above, reports in this category generally have involved communications outages within the retail sections of an airport. A strict interpretation of current Section 4.5(c)—i.e. that “[a]ll outages that potentially affect communications for at least 30 minutes with any airport that qualifies as a ‘special office and facility’ . . . shall be reported,”—would have required providers to report outages that were not mission-critical, and which could represent a financial and administrative burden on those providers, with virtually no public safety benefit or public policy goal. Therefore, we amend Section 4.5(c) to clarify that carriers need only report disruptions of critical communications, which impact the airports covered by our rules. To the extent our decision today responds affirmatively to Sprint's request, we grant its request for clarification, which will be reflected in our ordering clause.

79. In 2004, the Commission exempted satellite and terrestrial wireless communications providers from reporting outages potentially affecting airports, on the grounds that the critical communications infrastructure serving those airports was landline-based. CTIA, Cingular Wireless, and Sprint filed petitions urging the Commission to exempt wireless providers from reporting outages pertaining to all other special offices and facilities, positing that the rationale for excluding wireless carriers from outage reporting for airports, i.e., that critical communications were landline-based, applied as well to all special offices and facilities. In the 2015 Part 4 Notice, we asked whether, in spite of the continued growth in the use of wireless networks, we should extend the satellite and terrestrial wireless exemption to all “special offices and facilities.” CTIA and Sprint again urged that the exemption be extended. CTIA notes that, today as in 2004, wireless networks provide undifferentiated service to all end users, even with the growth of wireless telephone in the past decade. As a matter of practice, wireless providers do not assign dedicated access lines to specific end users, and therefore do not have dedicated access lines for the critical portions of any of the special offices and facilities. Sprint argues that, as with airports, the communications infrastructure serving all special offices and facilities remains primarily landline-based, and that unless a wireless carrier provides a dedicated access line to a special office or facility, it has no way of knowing whether one of its phones is being used by personnel at such an office or facility.

80. As previously noted, we will extend the wireless exemption for satellite and terrestrial wireless carriers to all special offices and facilities. To the extent our decision today responds affirmatively to the requests of CTIA, Cingular, and Sprint to exempt wireless carriers from being required to report outages potentially affecting all special offices and facilities, we grant their requests, which will be reflected in our ordering clause.

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

82. The Report and Order contains new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under Section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees. In this Report and Order and Order on Reconsideration, we have assessed the effects of updates to the part 4 outage reporting rules, and find that these updates does not have significant effects on business with fewer than 25 employees.

83. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Amendments to Part 4 of the Commission's Rules Concerning Disruptions to Communications; New Part 4 of the Commission's Rules Concerning Disruptions to Communications, Notice of Proposed Rulemaking, Second Report and Order, and Order on Reconsideration. The Commission sought written public comment on the proposals in the Notice, including comment on the IRFA. No comments were received. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

84. In this Report and Order, we take specific steps to improve our current part 4 rules by adopting various proposals made in a Notice of Proposed Rulemaking (Notice) adopted in 2015. These specific amendments stem from our experience with outage reporting over the past ten years, and will enhance the information we receive on outages for services already covered in part 4. In this Report and Order, we adopt the following changes to our part 4 outage reporting rules:

• Update the reporting metric and threshold for communication disruptions impacting major transport facilities from a DS3-based to OC3-based standard, and reduce the reporting window for simplex events (transmission line disruptions) from five days to four days;

• update the reporting of wireless outages by adopting a standardized method to calculate the number of users “potentially affected” in an outage, and clarify that, when an outage affects only some 911 calling centers, or PSAPs, served by a mobile switching center, wireless providers may utilize their own identifiable scheme to allocate the number of potentially affected users so long as the allocation reflects the relative size of the affected PSAP(s);

• find that a “loss of communications” to a PSAP occurs when there is a network malfunction or higher-level issue that significantly degrades or prevents 911 calls from being completed to PSAPs, including when 80 percent or more of a provider's trunks serving a PSAP become disabled;

• update the rules regarding reporting of outages affecting “special offices and facilities” by (i) extending the reporting obligation to high-level enrollees in the Telecommunications Service Priority program, (ii) eliminating outdated and non-applicable rules, (iii) narrowing the types of airports that are considered “special offices and facilities,” and (iv) limiting outage reporting from airports to critical communications only; and

• conclude that direct access to NORS by our state and federal partners is in the public interest, but determine that further consideration is warranted to ensure that the process includes adequate safeguards to maintain the security and confidentiality of sensitive information, and accordingly direct the Public Safety and Homeland Security Bureau (Bureau) to study these issues and develop recommendations for the successful implementation of our information-sharing proposals.

85. The Order on Reconsideration limits outage reporting for events affecting airports to those outages that impact airport critical communications, and exempts satellite and terrestrial wireless carriers from reporting outages affecting all “special offices and facilities,” extending the exemption previously limited to airports.

86. The legal bases for the rule changes adopted in this Report and Order are contained in Sections 1, 4(i), 4(j), 4(o), 251(e)(3), 254, 301, 303(b), 303(g), 303(r), 307, 309(a), 309(j), 316, 332, 403, 615a-1, and 615c of the Communications Act of 1934, as amended, and Section 706 of the Communications Act of 1996, 47 U.S.C. 151, 154(i)-(j) & (o), 251(e)(3), 254, 301, 303(b), 303(g), 303(r), 307, 309(a), 309(j), 316, 332, 403, 615a-1, 615c, and 1302.

87. The IRFA solicited comment on the impact of the proposed rules to small businesses, as required by the RFA. While no comments were submitted specifically in response to the IRFA, a few commenters express concerns about the estimated costs for reporting. NTCA urges the Commission to consider small rural service providers and their unique circumstances. Other commenters argue that we underestimate the time burdens associated with filing NORS reports. We maintain that the reports cost an estimated $160 to file, and that other costs associated with “setting up and implementing a monitoring regime” are routine business costs independent of our reporting requirements.

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

89. Our action may, over time, affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three comprehensive, statutory small entity size standards. First, nationwide, there are a total of approximately 28.2 million small businesses, according to the SBA. In addition, a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1,621,315 small organizations. Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2011 indicate that there were 89,476 local governmental jurisdictions in the United States. We estimate that, of this total, as many as 88,506 entities may qualify as “small governmental jurisdictions.” Thus, we estimate that most governmental jurisdictions are small. We believe that the Report and Order and Order on Reconsideration may affect the following small entities, as further discussed in the document, https://apps.fcc.gov/edocs_public/attachmatch/FCC-16-63A1.pdf: (1) Wireline providers, including incumbent Local Exchange Carriers (incumbent LECs); and interexchange carriers; (2) Wireless Providers-Fixed and Mobile, including wireless telecommunications carriers (except satellite); (3) Satellite Service Providers, including satellite telecommunications providers and all telecommunications providers; (4) Cable Service Providers, including cable companies and systems and cable system operators; and (5) All Other Telecommunications.

90. The rules adopted in the Report and Order and Order on Reconsideration require telecommunications providers to report those outages that meet specified NORS outage reporting threshold criteria, now determined by a variety of factors, including the number of end users potentially affected by the outage and the duration of the outage. Providers must now comply with an updated OC3 metric for major transport facilities; adjust calculations for determining when there has been a “loss of communications” such that reporting is required; and report outages affecting as Level 1 and 2 enrollees of the Telecommunication Service Priority (TSP) program as “special offices and facilities.” The document, https://apps.fcc.gov/edocs_public/attachmatch/FCC-16-63A1.pdf, discusses the requirements in full.

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

92. The new and updated reporting requirements are minimally necessary to assure that we receive adequate information to perform our statutory responsibilities with respect to the reliability of telecommunications and their infrastructures. The Commission considered other possible proposals and sought comment on the reporting thresholds and the analysis presented. Ultimately, we believe that outage reporting triggers are set sufficiently high as to make it unlikely that small businesses would be impacted significantly by the final rules. In fact, we anticipate that in many instances, small businesses will find their burden decreased by the new reporting thresholds. In the Commission's experience administering NORS, small companies only rarely experience outages that meet the NORS outage reporting threshold criteria, and we expect that small companies will only be slightly impacted by our rule changes adopted today. Telecommunications providers already file required notifications and reports for internal purposes. We believe the only burden associated with the reporting requirements contained here will be the time required to complete any additional notifications and reports following the proposed changes.

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

94. Accordingly it is ordered that, pursuant to the authority contained in Sections 1, 4(i), 4(j), 4(o), 251(e)(3), 254, 301, 303(b), 303(g), 303(r), 307, 309(a), 309(j), 316, 332, 403, 615a-1, and 615c of the Communications Act of 1934, as amended, and Section 706 of the Communications Act of 1996, 47 U.S.C. 151, 154(i)-(j) & (o), 251(e)(3), 254, 301, 303(b), 303(g), 303(r), 307, 309(a), 309(j), 316, 332, 403, 615a-1, 615c, and 1302, this Report and Order in PS Docket 15-80 and 11-82 is ADOPTED.

95. It is further ordered that the Commission's Public Safety and Homeland Security Bureau shall develop and recommend to the Commission proposed rules, published elsewhere in this Federal Register, for NORS information sharing in accordance with its delegated authority and this Report and Order.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 4 as follows:

NMFS manages the reef fish fishery of the Gulf, which includes greater amberjack, under the Fishery Management Plan for the Reef Fish Resources of the Gulf (FMP). The Gulf of Mexico Fishery Management Council (Council) prepared the FMP and NMFS implements the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622. All greater amberjack weights discussed in this temporary rule are in round weight.

The commercial annual catch limit (ACL) for Gulf greater amberjack is 464,400 lb (210,648 kg), as specified in 50 CFR 622.41(a)(1)(iii). The commercial ACT (equivalent to the commercial quota) is 394,740 lb (179,051 kg), as specified in 50 CFR 622.39(a)(1)(v).

Under 50 CFR 622.41(a)(1)(i), NMFS is required to close the commercial sector for greater amberjack when the commercial quota is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS has determined the commercial quota will be reached by July 17, 2016. Accordingly, the commercial sector for Gulf greater amberjack is closed effective 12:01 a.m., local time, July 17, 2016, until 12:01 a.m., local time, January 1, 2017.

The operator of a vessel with a valid commercial vessel permit for Gulf reef fish with greater amberjack on board must have landed, bartered, traded, or sold such greater amberjack prior to 12:01 a.m., local time, July 17, 2016. During the commercial closure, the bag and possession limits specified in 50 CFR 622.38(b)(1) apply to all harvest or possession of greater amberjack in or from the Gulf exclusive economic zone (EEZ). However, from June 1 through July 31 each year, the recreational sector for greater amberjack is also closed, as specified in 50 CFR 622.34(c), and during this recreational closure, the bag and possession limits for greater amberjack in or from the Gulf EEZ are zero. During the commercial closure, the sale or purchase of greater amberjack taken from the EEZ is prohibited. The prohibition on sale or purchase does not apply to the sale or purchase of greater amberjack that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, July 17, 2016, and were held in cold storage by a dealer or processor. The commercial sector for greater amberjack will reopen on January 1, 2017, the beginning of the 2017 commercial fishing season.

The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of Gulf greater amberjack and is consistent with the Magnuson-Stevens Act and other applicable laws.

This action is taken under 50 CFR 622.41(a)(1) and is exempt from review under Executive Order 12866.

These measures are exempt from the procedures of the Regulatory Flexibility Act, because the temporary rule is issued without opportunity for prior notice and comment.

This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA), finds that the need to immediately implement this action to close the commercial sector for greater amberjack constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures would be unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule establishing the closure provisions was subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect greater amberjack. The capacity of the commercial sector allows for rapid harvest of the commercial quota, and prior notice and opportunity for public comment would require time and would potentially result in harvest exceeding the commercial ACL.

For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).