Federal Register Vol. 81, No.133,

Federal Register Volume 81, Issue 133 (July 12, 2016)

Page Range44981-45223
FR Document

81_FR_133
Current View
Page and SubjectPDF
81 FR 45177 - Sunshine Act MeetingPDF
81 FR 45193 - Sunshine Act MeetingPDF
81 FR 45181 - Sunshine Act MeetingsPDF
81 FR 45135 - Proposed Information Collection; Comment RequestPDF
81 FR 45202 - 30-Day Notice of Proposed Information Collection: Supplemental Questionnaire To Determine Identity for a U.S. PassportPDF
81 FR 45202 - 30-Day Notice of Proposed Information Collection: Supplemental Questionnaire To Determine Entitlement for a U.S. PassportPDF
81 FR 45015 - Special Local Regulations; Marine Events Held in the Sector Long Island Sound Captain of the Port ZonePDF
81 FR 45136 - Termination of Intent To Prepare a Draft Environmental Impact Statement for the Dam Safety Study, Lewisville Dam, Elm Fork Trinity River, Denton County, TexasPDF
81 FR 45222 - Open Meeting of the Taxpayer Advocacy Panel Special Projects CommitteePDF
81 FR 45160 - Sunshine Act MeetingsPDF
81 FR 45195 - Sunshine Act MeetingPDF
81 FR 45200 - Sunshine Act MeetingPDF
81 FR 45126 - Certain Large Diameter Carbon and Alloy Seamless Standard, Line, and Pressure Pipe (Over 4 1/2PDF
81 FR 45124 - Certain Small Diameter Carbon and Alloy Seamless Standard, Line, and Pressure Pipe (Under 4 1/2PDF
81 FR 45128 - Chlorinated Isocyanurates From the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review; 2014-2015PDF
81 FR 45128 - Certain Tissue Paper Products From the People's Republic of China: Continuation of the Antidumping Duty OrderPDF
81 FR 45123 - Foreign-Trade Zone (FTZ) 7-Mayaguez, Puerto Rico; Authorization of Proposed Production Activity; Lilly Del Caribe, Inc., Subzone 7K (Pharmaceutical Products); Carolina and Guayama, Puerto RicoPDF
81 FR 45123 - Foreign-Trade Zone (FTZ) 189-Kent, Ottawa and Muskegon Counties, Michigan; Notification of Proposed Production Activity; Southern Lithoplate, Inc. (Aluminum Printing Plates); Grand Rapids, MichiganPDF
81 FR 45121 - General Conference Committee of the National Poultry Improvement PlanPDF
81 FR 45121 - Notice of Availability of Proposed Changes to the National Poultry Improvement Plan Program StandardsPDF
81 FR 45137 - Reopening; Application Deadline for Fiscal Year 2015; Performance Partnership PilotsPDF
81 FR 45089 - National Emission Standards for Hazardous Air Pollutants: Ferroalloys ProductionPDF
81 FR 45148 - Certain New Chemicals; Receipt and Status Information for May 2016PDF
81 FR 45153 - Pesticide Maintenance Fee: Notice of Receipt of Requests to Voluntarily Cancel Certain Pesticide RegistrationsPDF
81 FR 45134 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
81 FR 45167 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
81 FR 45173 - Agenda and Notice of Public Meetings of the Moving to Work Research Advisory CommitteePDF
81 FR 45138 - Application To Export Electric Energy; Tidal Energy Marketing Inc.PDF
81 FR 45183 - Notice of Intent To Seek Approval To Establish an Information CollectionPDF
81 FR 45138 - Amended Record of Decision for the Continued Operation of the Y-12 National Security ComplexPDF
81 FR 45169 - Proposed Collection; 60-Day Comment Request; Palliative Care: Conversations Matter® Phase Two EvaluationPDF
81 FR 45170 - Notice of Correction for Announcement of Requirements and Registration for “Up For A Challenge (U4C)-Stimulating Innovation in Breast Cancer Genetic Epidemiology”PDF
81 FR 45172 - Agency Information Collection Activities: Proposed Collection; Comment Request; America's PrepareAthon! National Day of Action Event RegistrationPDF
81 FR 45170 - Expansion of Global Entry Eligibility to All Citizens of the United KingdomPDF
81 FR 45024 - Gathering of Certain Plants or Plant Parts by Federally Recognized Indian Tribes for Traditional PurposesPDF
81 FR 45176 - Utah Resource Advisory Council MeetingPDF
81 FR 45122 - Revision of Land and Resource Management Plan for the Santa Fe National Forest; Counties of Los Alamos, Mora, Rio Arriba, Sandoval, San Miguel, Santa Fe, and Taos, New Mexico; CorrectionPDF
81 FR 45214 - Qualification of Drivers; Exemption Applications; VisionPDF
81 FR 45205 - Qualification of Drivers; Exemption Applications; Diabetes MellitusPDF
81 FR 45213 - Qualification of Drivers; Exemption Applications; Diabetes MellitusPDF
81 FR 45206 - Crash Weighting AnalysisPDF
81 FR 45210 - Crash Preventability ProgramPDF
81 FR 45217 - Commercial Driver's License Standards: Application for Exemption; Daimler Trucks North America (Daimler)PDF
81 FR 45218 - Petition for Waiver of CompliancePDF
81 FR 45184 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
81 FR 45164 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
81 FR 45166 - Agency Forms Undergoing Paperwork Reduction Act ReviewPDF
81 FR 45133 - Proposed Information Collection; Comment Request; Western Alaska Community Development Quota (CDQ) ProgramPDF
81 FR 45219 - Information Collection, CDFI and NACA ProgramsPDF
81 FR 45012 - Cargo Securing ManualsPDF
81 FR 45222 - Notice of Open Meetings To Prepare the 2016 Annual Report to CongressPDF
81 FR 45221 - Agency Information Collection Activities: Information Collection Renewal; Submission for OMB Review; Reverse Mortgage Products: Guidance for Managing Compliance and Reputation RisksPDF
81 FR 45204 - Petition for Exemption; Summary of Petition Received; (Southwest Airlines Company)PDF
81 FR 45203 - Petition for Exemption; Summary of Petition Received; Ameristar Air Cargo, Inc.PDF
81 FR 45203 - Petition for Exemption; Summary of Petition Received; Airborne Heat BallooningPDF
81 FR 45201 - West Virginia Disaster Number WV-00043PDF
81 FR 45168 - Meeting of the National Preparedness and Response Science BoardPDF
81 FR 45182 - Determination of the Chairperson of the National Endowment for the Arts Regarding Closure of Portions of Meetings of Advisory Committees (Advisory Panels)PDF
81 FR 45181 - Determination of the Chairperson of the National Endowment for the Arts Regarding Potential Closure of Portions of Meetings of the National Council on the ArtsPDF
81 FR 45201 - Data Collection Available for Public CommentsPDF
81 FR 45183 - Arts Advisory Panel MeetingsPDF
81 FR 45201 - Surrender of License of Small Business Investment CompanyPDF
81 FR 45201 - Texas Disaster Number TX-00468PDF
81 FR 45068 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 2016 Commercial Accountability Measure and Closure for Gulf of Mexico Greater AmberjackPDF
81 FR 45012 - Certified Professional Employer Organizations; CorrectionPDF
81 FR 45144 - HY Power Energy Company; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing ApplicationsPDF
81 FR 45145 - Commission Information Collection Activities (FERC-511, FERC-515, and FERC-574); Consolidated Comment Request; ExtensionPDF
81 FR 45147 - Loup River Public Power District; Notice of Availability of Final Environmental AssessmentPDF
81 FR 45141 - Notice of Staff Attendance at the Southwest Power Pool Regional State Committee MeetingPDF
81 FR 45143 - Terrapin Energy LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 45144 - Black Oak Wind, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 45143 - Five Points Solar Park LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 45140 - Hancock Wind, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 45141 - North Star Solar PV LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 45144 - Armstrong Power, LLC; Calumet Energy Team, LLC; Northeastern Power Company; Pleasants Energy, LLC; Troy Energy, LLC; Notice of Institution of Section 206 Proceeding and Refund Effective DatePDF
81 FR 45142 - Combined Notice of Filings #2PDF
81 FR 45145 - Combined Notice of Filings #1PDF
81 FR 45219 - Hazardous Materials: Pittsburgh, Pennsylvania Permit Requirements for Transportation of Hazardous MaterialPDF
81 FR 45135 - Proposed Collection; Comment RequestPDF
81 FR 45160 - Submission for OMB Review; Cost Accounting Standards AdministrationPDF
81 FR 45160 - Notice of Termination; 10421 First Guaranty Bank and Trust Company of Jacksonville, Jacksonville, FloridaPDF
81 FR 45185 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing of Proposed Rule Change to BZX Rule 14.11(d) To Add the EURO STOXX 50® Volatility Futures to the Definition of Futures Reference AssetPDF
81 FR 45196 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rules Related to Execution and PriorityPDF
81 FR 45188 - Self-Regulatory Organizations; NASDAQ BX, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 4120PDF
81 FR 45190 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Its Price ListPDF
81 FR 45194 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 3100PDF
81 FR 45176 - Notice of Inventory Completion: Museum of the American Indian, Novato, CAPDF
81 FR 45132 - Request for Nominations of Members To Serve on the National Advisory Committee on Windstorm Impact ReductionPDF
81 FR 45130 - National Conference on Weights and Measures 101st Annual MeetingPDF
81 FR 45170 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingPDF
81 FR 45180 - NASA Advisory Council; Science Committee; Heliophysics Subcommittee; MeetingPDF
81 FR 45022 - Safety Zone; Hudson River, South Nyack and Tarrytown, NYPDF
81 FR 45039 - Air Quality Designations for the 2010 Sulfur Dioxide (SO2PDF
81 FR 45118 - Department of the Treasury Acquisition Regulations; Incremental Funding of Fixed-Price, Time-and-Material or Labor-Hour Contracts During a Continuing ResolutionPDF
81 FR 45018 - 2016 Quarterly Listings; Safety Zones, Security Zones, Special Local Regulations, Drawbridge Operation Regulations and Regulated Navigation AreasPDF
81 FR 45008 - Requirement To Notify the IRS of Intent To Operate as a Section 501(c)(4) Organization; Final and Temporary RegulationsPDF
81 FR 45088 - Requirement To Notify the IRS of Intent To Operate as a Section 501(c)(4) OrganizationPDF
81 FR 45013 - Special Local Regulation; Drag Boat Championship, Intracoastal Waterway; Bucksport, SCPDF
81 FR 45070 - Airworthiness Directives; The Boeing CompanyPDF
81 FR 45075 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 44981 - Airworthiness Directives; Bombardier, Inc. AirplanesPDF
81 FR 44994 - Airworthiness Directives; Airbus AirplanesPDF
81 FR 45055 - Disruptions to CommunicationsPDF
81 FR 45095 - Disruptions to CommunicationsPDF
81 FR 45079 - Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review ProcessPDF
81 FR 45020 - Drawbridge Operation Regulation; Norwalk River, Norwalk, CTPDF
81 FR 44989 - Airworthiness Directives; Airbus AirplanesPDF
81 FR 45174 - Final Environmental Impact Statement and Final Habitat Conservation Plan for the Na Pua Makani Wind Energy Project, Oahu, HIPDF
81 FR 44987 - Airworthiness Directives; Dassault Aviation AirplanesPDF
81 FR 44983 - Airworthiness Directives; Airbus AirplanesPDF
81 FR 45072 - Airworthiness Directives; Saab AB, Saab Aeronautics (Formerly Known as Saab AB, Saab Aerosystems) AirplanesPDF
81 FR 44996 - Airworthiness Directives; Bombardier, Inc. AirplanesPDF
81 FR 44998 - Availability of Certain North American Electric Reliability Corporation Databases to the CommissionPDF
81 FR 45122 - Southern Arizona Resource Advisory CommitteePDF

Issue

81 133 Tuesday, July 12, 2016 Contents Agriculture Agriculture Department See

Animal and Plant Health Inspection Service

See

Forest Service

Animal Animal and Plant Health Inspection Service NOTICES Charter Renewals: General Conference Committee of the National Poultry Improvement Plan, 45121 2016-16461 Proposed Changes to the National Poultry Improvement Plan Program Standards, 45121-45122 2016-16460 Consumer Financial Protection Bureau of Consumer Financial Protection NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 45134 2016-16446 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 45164-45167 2016-16419 2016-16420 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 45167-45168 2016-16445 Coast Guard Coast Guard RULES 2016 Quarterly Listings; Safety Zones, Security Zones, Special Local Regulations, Drawbridge Operation Regulations and Regulated Navigation Areas, 45018-45020 2016-16345 Cargo Securing Manuals, 45012-45013 2016-16416 Drawbridge Operations: Norwalk River, Norwalk, CT, 45020-45022 2016-16226 Safety Zones: Hudson River, South Nyack and Tarrytown, NY, 45022-45024 2016-16364 Special Local Regulations: Drag Boat Championship, Intracoastal Waterway, Bucksport, SC, 45013-45015 2016-16334 Marine Events Held in the Sector Long Island Sound Captain of the Port Zone, 45015-45018 2016-16518 Commerce Commerce Department See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Institute of Standards and Technology

See

National Oceanic and Atmospheric Administration

Community Development Community Development Financial Institutions Fund NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 45219-45221 2016-16417 Comptroller Comptroller of the Currency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Reverse Mortgage Products: Guidance for Managing Compliance and Reputation Risks, 45221-45222 2016-16414 Corporation Corporation for National and Community Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 45135 2016-16524 Defense Department Defense Department See

Engineers Corps

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 45135-45136 2016-16384 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Cost Accounting Standards Administration, 45160-45164 2016-16382
Education Department Education Department NOTICES Application Deadline for Fiscal Year 2015: Performance Partnership Pilots; Reopening, 45137-45138 2016-16454 Energy Department Energy Department See

Federal Energy Regulatory Commission

See

National Nuclear Security Administration

NOTICES Application to Export Electric Energy: Tidal Energy Marketing Inc., 45138 2016-16442
Engineers Engineers Corps NOTICES Environmental Impact Statements; Availability, etc.: Dam Safety Study, Lewisville Dam, Elm Fork Trinity River, Denton County, TX, 45136-45137 2016-16517 Environmental Protection Environmental Protection Agency RULES Air Quality Designations for the 2010 Sulfur Dioxide Primary National Ambient Air Quality Standard—Round 2, 45039-45055 2016-16348 PROPOSED RULES National Emission Standards for Hazardous Air Pollutants: Ferroalloys Production, 45089-45095 2016-16450 NOTICES Certain New Chemicals: Receipt and Status Information for May 2016, 45148-45153 2016-16448 Pesticide Maintenance Fees: Requests to Voluntarily Cancel Certain Pesticide Registrations, 45153-45159 2016-16447 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus Airplanes, 44983-44987, 44989-44996 2016-15929 2016-16212 2016-16316 Bombardier, Inc. Airplanes, 44981-44983, 44996-44998 2016-15354 2016-16321 Dassault Aviation Airplanes, 44987-44989 2016-15930 PROPOSED RULES Airworthiness Directives: Saab AB, Saab Aeronautics (Formerly Known as Saab AB, Saab Aerosystems) Airplanes, 45072-45075 2016-15927 The Boeing Company, 45070-45072 2016-16323 The Boeing Company Airplanes, 45075-45079 2016-16322 NOTICES Petitions for Exemption; Summaries: Airborne Heat Ballooning, 45203 2016-16411 Ameristar Air Cargo, Inc., 45203-45204 2016-16412 Southwest Airlines Co., 45204-45205 2016-16413 Federal Communications Federal Communications Commission RULES Disruptions to Communications, 45055-45068 2016-16274 PROPOSED RULES Disruptions to Communications, 45095-45118 2016-16273 Federal Deposit Federal Deposit Insurance Corporation NOTICES Terminations of Receivership: First Guaranty Bank and Trust Company of Jacksonville, Jacksonville, FL, 45160 2016-16381 Federal Election Federal Election Commission NOTICES Meetings; Sunshine Act, 45160 2016-16498 Federal Emergency Federal Emergency Management Agency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: America's PrepareAthon! National Day of Action Event Registration, 45172-45173 2016-16436 Federal Energy Federal Energy Regulatory Commission RULES Availability of Certain North American Electric Reliability Corporation Databases to the Commission, 44998-45008 2016-14760 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 45145-45147 2016-16397 Combined Filings, 2016-16387 45142-45143, 45145 2016-16388 Environmental Assessments; Availability, etc.: Loup River Public Power District, 45147-45148 2016-16396 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Black Oak Wind, LLC, 45144 2016-16393 Five Points Solar Park LLC, 45143-45144 2016-16392 Hancock Wind, LLC, 45140-45141 2016-16391 North Star Solar PV LLC, 45141 2016-16390 Terrapin Energy LLC, 45143 2016-16394 Preliminary Permit Applications: HY Power Energy Co., 45144 2016-16398 Refund Effective Date: Armstrong Power, LLC, Calumet Energy Team, LLC, Northeastern Power Co., Pleasants Energy, LLC, Troy Energy, LLC, 45144-45145 2016-16389 Staff Attendances, 45141-45142 2016-16395 Federal Motor Federal Motor Carrier Safety Administration NOTICES Commercial Driver's License Standards—Applications for Exemption: Daimler Trucks North America (Daimler), 45217-45218 2016-16425 Crash Preventability Program, 45210-45213 2016-16426 Crash Weighting Analysis, 45206-45210 2016-16427 Qualification of Drivers; Exemption Applications: Diabetes Mellitus, 45205-45206, 45213-45214 2016-16428 2016-16429 Vision, 45214-45217 2016-16430 Federal Railroad Federal Railroad Administration NOTICES Petitions for Waivers of Compliance, 45218-45219 2016-16424 Fish Fish and Wildlife Service NOTICES Environmental Impact Statements; Availability, etc.: Na Pua Makani Wind Energy Project, Oahu, HI; Final Habitat Conservation Plan, 45174-45176 2016-16082 Foreign Trade Foreign-Trade Zones Board NOTICES Proposed Production Activities: Lilly Del Caribe, Inc. Subzone 7K, Foreign-Trade Zone 7, Carolina and Guayama, PR, 45123 2016-16464 Southern Lithoplate, Inc., Foreign-Trade Zone 189, Grand Rapids, MI, 45123 2016-16463 Forest Forest Service NOTICES Environmental Impact Statements; Availability, etc.: Santa Fe National Forest, Los Alamos, Mora, Rio Arriba, Sandoval, San Miguel, Santa Fe, and Taos Counties, NM; Correction, 45122 2016-16431 Meetings: Southern Arizona Resource Advisory Committee, 45122-45123 2016-14582 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Cost Accounting Standards Administration, 45160-45164 2016-16382 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

National Institutes of Health

NOTICES Meetings: National Preparedness and Response Science Board, 45168-45169 2016-16409
Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

See

U.S. Customs and Border Protection

Housing Housing and Urban Development Department NOTICES Meetings: Moving to Work Research Advisory Committee, 45173-45174 2016-16444 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

See

National Park Service

Internal Revenue Internal Revenue Service RULES Certified Professional Employer Organizations; Correction, 45012 2016-16400 Requirement to Notify the IRS of Intent to Operate as a Section 501(c)(4) Organization, 45008-45012 2016-16338 PROPOSED RULES Requirement to Notify the IRS of Intent to Operate as a Section 501(c)(4) Organization, 45088-45089 2016-16337 NOTICES Meetings: Taxpayer Advocacy Panel Special Projects Committee, 45222 2016-16513 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Chlorinated Isocyanurates from the People's Republic of China, 45128-45130 2016-16466 Large Diameter Carbon and Alloy Seamless Standard, Line, and Pressure Pipe (Over 4.5 Inches) from Japan, 45126-45127 2016-16474 Small Diameter Carbon and Alloy Seamless Standard, Line, and Pressure Pipe (Under 4.5 Inches) from Japan, 45124-45125 2016-16473 Tissue Paper Products from the People's Republic of China, 45128 2016-16465 Land Land Management Bureau NOTICES Meetings: Utah Resource Advisory Council, 45176 2016-16433 Legal Legal Services Corporation NOTICES Meetings; Sunshine Act, 45177-45180 2016-16568 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Cost Accounting Standards Administration, 45160-45164 2016-16382 Meetings: NASA Advisory Council; Science Committee; Heliophysics Subcommittee, 45180-45181 2016-16367 National Council National Council on Disability NOTICES Meetings; Sunshine Act, 45181 2016-16539 National Endowment for the Arts National Endowment for the Arts NOTICES Determination of the Chairperson of the National Endowment for the Arts Regarding Closure of Portions of Meetings of Advisory Committees (Advisory Panels), 45182 2016-16408 Determination of the Chairperson of the National Endowment for the Arts Regarding Potential Closure of Portions of Meetings of the National Council on the Arts, 45181-45182 2016-16407 Meetings: Arts Advisory Panel, 45183 2016-16405 National Foundation National Foundation on the Arts and the Humanities See

National Endowment for the Arts

National Institute National Institute of Standards and Technology NOTICES Meetings: National Conference on Weights and Measures, 45130-45132 2016-16372 Requests for Nominations: Members to Serve on the National Advisory Committee on Windstorm Impact Reduction, 45132-45133 2016-16373 National Institute National Institutes of Health NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Palliative Care: Conversations Matter Phase Two Evaluation, 45169-45170 2016-16438 Meetings: National Institute of Allergy and Infectious Diseases, 45170 2016-16368 2016-16369 Up For A Challenge: Stimulating Innovation in Breast Cancer Genetic Epidemiology; Requirements and Registration; Correction, 45170 2016-16437 Energy National Nuclear National Nuclear Security Administration NOTICES Environmental Impact Statements; Availability, etc.: Continued Operation of the Y National Security Complex, 45138-45140 2016-16439 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Gulf of Mexico Greater Amberjack; Commercial Accountability Measure and Closure, 45068-45069 2016-16401 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Western Alaska Community Development Quota Program, 45133-45134 2016-16418 National Park National Park Service RULES Gathering of Certain Plants or Plant Parts by Federally Recognized Indian Tribes for Traditional Purposes, 45024-45039 2016-16434 NOTICES Inventory Completions: Museum of the American Indian, Novato, CA, 45176-45177 2016-16374 National Science National Science Foundation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 45183-45185 2016-16421 2016-16440 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Permit Requirements for Transportation of Hazardous Material: Pittsburgh, PA, 45219 2016-16386 Securities Securities and Exchange Commission NOTICES Meetings; Sunshine Act, 2016-16496 45193-45196, 45200 2016-16497 2016-16542 Self-Regulatory Organizations; Proposed Rule Changes: Bats BZX Exchange, Inc., 45185-45188 2016-16380 C2 Options Exchange, Inc., 45196-45200 2016-16379 NASDAQ BX, Inc., 45188-45190 2016-16378 NASDAQ PHLX LLC, 45194-45195 2016-16376 New York Stock Exchange LLC, 45190-45193 2016-16377 Small Business Small Business Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 45201 2016-16406 Disaster Declarations: Texas; Amendment 5, 45201 2016-16402 West Virginia; Amendment 3, 45201 2016-16410 Surrender of License of Small Business Investment Companies: Capital Southwest Venture Corp., 45201 2016-16403 Social Social Security Administration PROPOSED RULES Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process, 45079-45087 2016-16265 State Department State Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Supplemental Questionnaire to Determine Entitlement for a U.S. Passport, 45202 2016-16521 Supplemental Questionnaire to Determine Identity for a U.S. Passport, 45202-45203 2016-16522 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

See

Federal Railroad Administration

See

Pipeline and Hazardous Materials Safety Administration

Treasury Treasury Department See

Community Development Financial Institutions Fund

See

Comptroller of the Currency

See

Internal Revenue Service

PROPOSED RULES Acquisition Regulations: Incremental Funding of Fixed-Price, Time-and-Material or Labor-Hour Contracts during a Continuing Resolution, 45118-45120 2016-16346
Customs U.S. Customs and Border Protection NOTICES Expansion of Global Entry Eligibility to All Citizens of the United Kingdom, 45170-45172 2016-16435 U.S. China U.S.-China Economic and Security Review Commission NOTICES Meetings: Preparing the 2016 Annual Report to Congress, 45222-45223 2016-16415 Reader Aids

Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.thefederalregister.org and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.

81 133 Tuesday, July 12, 2016 Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-5590; Directorate Identifier 2016-NM-018-AD; Amendment 39-18588; AD 2016-14-07 RIN 2120-AA64 Airworthiness Directives; Bombardier, Inc. Airplanes AGENCY:

Federal Aviation Administration (FAA), Department of Transportation (DOT).

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) 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. This AD was prompted by reports of undesirable changes in the Reference Airspeed (RAS) Bug, occurring during flight without pilot input. This AD requires replacing the flight control computer (FCC). We are issuing this AD to prevent uncommanded pitch changes, which could result in deviation from a safe flight path.

DATES:

This AD is effective August 16, 2016.

The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of August 16, 2016.

ADDRESSES:

For service information identified in this final rule, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-5000; fax 514-855-7401; email [email protected]; Internet. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5590.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5590; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Assata Dessaline, Aerospace Engineer, Avionics and Services Branch, ANE-172, FAA, New York Aircraft Certification Office (ACO), 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7301; fax 516-794-5531.

SUPPLEMENTARY INFORMATION:

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:

There have been numerous reports of uncommanded changes in the Reference Airspeed (RAS) Bug during flight. When the Auto Flight Control System (AFCS) is in a speed mode (CLB, DES, IAS or MACH), the flight director will show vertical guidance to achieve or maintain the reference airspeed. If the autopilot is engaged, the aeroplane will automatically follow that vertical guidance and cause the aeroplane to pitch up or pitch down. Investigation revealed that this uncommanded reference airspeed changes were caused by the FCC that did not correctly read the input data from the Input/Output Concentrator. If not corrected, these uncommanded pitch changes could create hazard for continued safe flight. This [Canadian] AD mandates installation of a new filter to the Input/Output Circuit Card in the FCC.

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.

Comments

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

Conclusion

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

Related Service Information Under 1 CFR Part 51

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.

Costs of Compliance

We estimate that this AD affects 1,008 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Replace FCC 3 work-hours × $85 per hour = $255 per airplane $2,800 $3,055 $3,079,440
    Authority for This Rulemaking

    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.

    Regulatory Findings

    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.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    Adoption of the Amendment

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

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-14-07 Bombardier, Inc. Amendment 39-18588. Docket No. FAA-2016-5590; Directorate Identifier 2016-NM-018-AD. (a) Effective Date

    This AD is effective August 16, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Bombardier, Inc., airplanes, certificated in any category, identified in paragraphs (c)(1) through (c)(5) of this AD, all serial numbers, that are equipped with a flight control computer (FCC) with a part number and serial number listed in paragraph 1A., “Effectivity”, of Bombardier Service Bulletin 601R-22-018, Revision A, dated November 3, 2015; or Service Bulletin 670BA-22-009, dated August 17, 2015; as applicable.

    (1) Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes.

    (2) Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes.

    (3) Model CL-600-2D15 (Regional Jet Series 705) airplanes.

    (4) Model CL-600-2D24 (Regional Jet Series 900) airplanes.

    (5) Model CL-600-2E25 (Regional Jet Series 1000) airplanes.

    (d) Subject

    Air Transport Association (ATA) of America Code 22, Auto Flight.

    (e) Reason

    This AD was prompted by reports of undesirable changes in the Reference Airspeed (RAS) Bug, occurring during flight without pilot input. We are issuing this AD to prevent uncommanded pitch changes, which could result in deviation from a safe flight path.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Replace the FCC for Certain Airplanes

    Within 33 months after the effective date of this AD: Remove the FCC from the integrated avionic processor system (IAPS) and replace the FCC, in accordance with the Accomplishment Instructions of the applicable service information specified in paragraph (g)(1) or (g)(2) of this AD.

    (1) Bombardier Service Bulletin 601R-22-018, Revision A, dated November 3, 2015; or

    (2) Bombardier Service Bulletin 670BA-22-009, dated August 17, 2015.

    (h) Parts Installation Limitation

    As of 12 months after the effective date of this AD, no person may install any FCC having a part or serial number identified in Bombardier Service Bulletin 601R-22-018, Revision A, dated November 3, 2015; or Bombardier Service Bulletin 670BA-22-009, dated August 17, 2015; unless “SB 50” is marked on the FCC modification chart (MOD chart).

    (i) Credit for Previous Actions

    This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Bombardier Service Bulletin 601R-22-018, dated August 17, 2015, as applicable. This service information is not incorporated by reference in this AD.

    (j) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, New York Aircraft Certification Office (ACO), ANE-170, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the New York ACO, send it to ATTN: Program Manager, Continuing Operational Safety, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; fax 516-794-5531. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, New York ACO, ANE-170, FAA; or Transport Canada Civil Aviation (TCCA); or Bombardier, Inc.'s TCCA Design Approval Organization (DAO). If approved by the DAO, the approval must include the DAO-authorized signature.

    (k) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian Airworthiness Directive CF-2016-02, dated January 20, 2016, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5590.

    (2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (l)(3) and (l)(4) of this AD.

    (l) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.

    (i) Bombardier Service Bulletin 601R-22-018, Revision A, dated November 3, 2015.

    (ii) Bombardier Service Bulletin 670BA-22-009, dated August 17, 2015.

    (3) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-5000; fax 514-855-7401; email [email protected]; Internet http://www.bombardier.com.

    (4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    (5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Renton, Washington, on June 28, 2016. John P. Piccola, Jr., Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-16321 Filed 7-11-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-3983; Directorate Identifier 2015-NM-009-AD; Amendment 39-18582; AD 2016-14-01] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

    Federal Aviation Administration (FAA), Department of Transportation (DOT).

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) 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. This AD was prompted by a report indicating that, during an operational test of a ram air turbine (RAT), the RAT did not deploy in automatic mode. This AD requires identification of the manufacturer, part number, and serial number of the RAT, and re-identification and modification of the RAT if necessary. We are issuing this AD to prevent non-deployment of the RAT, which, if preceded by a total engine flame-out, or during a total loss of normal electrical power generation, could result in reduced control of the airplane.

    DATES:

    This AD is effective August 16, 2016.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of August 16, 2016.

    ADDRESSES:

    For Airbus service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; Internet http://www.airbus.com.

    For Hamilton Sundstrand service information identified in this final rule, contact Hamilton Sundstrand, Technical Publications, Mail Stop 302-9, 4747 Harrison Avenue, P.O. Box 7002, Rockford, IL 61125-7002; telephone 860-654-3575; fax 860-998-4564; email [email protected]; Internet http://www.hamiltonsundstrand.com.

    You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-3983.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-3983; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION: Discussion

    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:

    During a scheduled Ram Air Turbine (RAT) operational test on an A330 aeroplane, the RAT did not deploy in automatic mode. The subsequent investigation conducted by the RAT manufacturer Hamilton Sundstrand (HS) and Arkwin Industries, revealed that this failure to deploy was due to an inadequate stroke margin in the manufacturing shimming procedure of the actuator deployment solenoids.

    This condition, if not corrected, could possibly result in reduced control of the aeroplane, particularly if occurring following a total engine flame out, or during a total loss of normal electrical power generation.

    Prompted by this unsafe condition, Airbus issued Service Bulletin (SB) A330-29-3126, SB A340-29-4097 and SB A340-29-5025, providing instructions to identify the manufacturer, part number (P/N) and serial number (s/n) of the RAT actuator, and to modify the shimming procedure for the affected RAT actuator.

    For the reasons described above, this [EASA] AD requires identification of the affected RAT actuators and, depending on its configuration (modified or not), the accomplishment of applicable corrective actions [modifying the RAT actuator. Additional actions include re-identifying the RAT actuator part number and RAT part number, as applicable].

    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.

    Comments

    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.

    Request To Change Requirement From Modify To Replace

    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 . . . .”

    Request To Include Review of Maintenance Records

    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.

    Request To Refer To Revised Service Information

    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.

    Request To Change References to a Certain Related AD

    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.

    Conclusion

    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.

    Related Service Information Under 1 CFR Part 51

    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.

    Costs of Compliance

    We estimate that this AD affects 84 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Identification 1 work-hour × $85 per hour = $85 None $85 $7,140

    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:

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Removal/installation/ re-identification 14 work-hours × $85 per hour = $1,190 $427,301 $428,491
    Authority for This Rulemaking

    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.

    Regulatory Findings

    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.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    Adoption of the Amendment

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

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-14-01 Airbus: Amendment 39-18582. Docket No. FAA-2016-3983; Directorate Identifier 2015-NM-009-AD. (a) Effective Date

    This AD is effective August 16, 2016.

    (b) Affected ADs

    This AD affects the ADs specified in paragraphs (b)(1), (b)(2), and (b)(3) of this AD.

    (1) AD 2012-21-19, Amendment 39-17235 (77 FR 65812, October 31, 2012) (“AD 2012-21-19”).

    (2) AD 2012-21-20, Amendment 39-17236 (77 FR 65799, October 31, 2012) (“AD 2012-21-20”).

    (3) AD 2016-04-01, Amendment 39-18395 (81 FR 8134, February 18, 2016) (“AD 2016-04-01”).

    (c) Applicability

    This AD applies to the airplanes identified in paragraphs (c)(1) through (c)(7) of this AD, certificated in any category.

    (1) Airbus Model A330-223F and -243F airplanes, all manufacturer serial numbers; except those on which Airbus Modification 204067 has been embodied in production.

    (2) Airbus Model A330-201, -202, -203, -223, and -243 airplanes, all manufacturer serial numbers; except those on which Airbus Modification 204067 has been embodied in production.

    (3) Airbus Model A330-301, -302, -303, -321, -322, -323,- 341, -342, and -343 airplanes, all manufacturer serial numbers; except those on which Airbus Modification 204067 has been embodied in production.

    (4) Airbus Model A340-211, -212, and -213, airplanes, all manufacturer serial numbers.

    (5) Airbus Model A340-311, -312, and -313 airplanes, all manufacturer serial numbers.

    (6) Airbus Model A340-541 airplanes, all manufacturer serial numbers.

    (7) Airbus Model A340-642 airplanes, all manufacturer serial numbers.

    (d) Subject

    Air Transport Association (ATA) of America Code 29, Hydraulic Power.

    (e) Reason

    This AD was prompted by a report indicating that, during an operational test of a ram air turbine (RAT), the RAT did not deploy in automatic mode. We are issuing this AD to prevent non-deployment of the RAT, which, if preceded by a total engine flame-out, or during a total loss of normal electrical power generation, could result in reduced control of the airplane.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Identification and Replacement for Certain Airbus Model A330, and A340-200 and -300 Airplanes

    For Airbus Model A330-200 Freighter series airplanes, Model A330-200 and -300 series airplanes, and Model A340-200 and -300 series airplanes: Within 30 months after the effective date of this AD, identify the supplier, part number, and serial number of the installed RAT actuator, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-29-3126, dated June 12, 2014; or Airbus Service Bulletin A340-29-4097, dated June 12, 2014; as applicable.

    (1) If the supplier identified is Arkwin Industries, and the identified RAT actuator part number and serial number are listed in Hamilton Sundstrand Service Bulletin ERPS06M-29-21, Revision 1, dated April 14, 2015, and the serial number is included in table 2 of Hamilton Sundstrand Service Bulletin ERPS06M-29-21, Revision 1, dated April 14, 2015, with a description of “correctly shimmed”: Within 30 months after the effective date of this AD, re-identify the actuator and the RAT, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-29-3126, dated June 12, 2014; or Airbus Service Bulletin A340-29-4097, dated June 12, 2014; as applicable.

    (2) If the supplier identified is Arkwin Industries, and the identified actuator RAT part number and serial number are listed in Hamilton Sundstrand Service Bulletin ERPS06M-29-21, Revision 1, dated April 14, 2015, and the serial number is included in table 2 of Hamilton Sundstrand Service Bulletin ERPS06M-29-21, Revision 1, dated April 14, 2015, with a description of “incorrectly shimmed”: Within 30 months after the effective date of this AD, remove the actuator from the RAT, install a modified actuator, and re-identify the RAT, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-29-3126, dated June 12, 2014; or Airbus Service Bulletin A340-29-4097, dated June 12, 2014; as applicable.

    (3) If the supplier identified is Arkwin Industries, and the identification plate for the RAT actuator is missing, or the part number and serial number are not listed in Hamilton Sundstrand Service Bulletin ERPS06M-29-21, Revision 1, dated April 14, 2015: Within 30 months after the effective date of this AD, remove the actuator from the RAT, install a modified actuator, and re-identify the RAT, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-29-3126, dated June 12, 2014; or Airbus Service Bulletin A340-29-4097, dated June 12, 2014; as applicable.

    (h) Identification and Replacement for Certain Airbus Model A340-500 and -600 Airplanes

    For Airbus Model A340-500 and -600 airplanes: Within 30 months after the effective date of this AD, identify the part number and serial number of the installed RAT actuator, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A340-29-5025, dated June 16, 2014.

    (1) If the identified RAT actuator part number and serial number are listed in Hamilton Sundstrand Service Bulletin ERPS33T-29-7, dated June 6, 2014, and the serial number is included in table 2 of Hamilton Sundstrand Service Bulletin ERPS33T-29-7, dated June 6, 2014, with a description of “correctly shimmed”: Within 30 months after the effective date of this AD, re-identify the actuator and the RAT, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A340-29-5025, dated June 16, 2014.

    (2) If the identified RAT actuator part number and serial number are listed in Hamilton Sundstrand Service Bulletin ERPS33T-29-7, dated June 6, 2014, and the serial number is included in table 2 of Hamilton Sundstrand Service Bulletin ERPS33T-29-7, dated June 6, 2014, with a description of “incorrectly shimmed”: Within 30 months after the effective date of this AD, remove the actuator from the RAT, install a modified actuator, and re-identify the RAT, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A340-29-5025, dated June 16, 2014.

    (3) If the identification plate for the RAT actuator is missing, or the part number and serial number are not listed in Hamilton Sundstrand Service Bulletin ERPS33T-29-7, dated June 6, 2014: Within 30 months after the effective date of this AD, remove the actuator from the RAT, install a modified actuator, and re-identify the RAT, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A340-29-5025, dated June 16, 2014.

    (i) Terminating Action for Certain Requirements of Other ADs

    (1) For Airbus Model A330-200 Freighter, A330-200, and A330-300 series airplanes; and Model A340-200 and -300 series airplanes: Accomplishment of the actions required by paragraph (g)(1), (g)(2), or (g)(3) of this AD constitutes compliance with the requirements of paragraph (g)(1) of AD 2012-21-19, paragraph (g) of AD 2012-21-20, and paragraphs (g), (h), and (i) of AD 2016-04-01, for that airplane only.

    (2) For Airbus Model A340-500 and -600 series airplanes: Accomplishment of the actions required by paragraphs (h)(1), (h)(2), and (h)(3) of this AD constitutes compliance with the requirements of paragraphs (h)(1) and (h)(2) of AD 2012-21-20, and paragraph (j) of 2016-04-01, for that airplane only.

    (j) Parts Installation Limitations

    As of the effective date of this AD, no person may install any RAT actuator or any RAT having a part number identified in table 1 to paragraph (j) of this AD on any airplane, unless it meets the conditions specified in paragraph (j)(1) or (j)(2) of this AD, as applicable.

    Table 1 to Paragraph (j) of This AD—Affected Part Numbers Affected Airbus airplane models RAT part No. RAT actuator
  • part No.
  • Model A330-200 and -300 series airplanes 1720934C, 1720934D, 766351A, 768084A, 770379A, 770952C, 770952D, 770952E 5912958, 5915768 Model A330-200 Freighter series airplanes 1720934C, 1720934D, 766351A, 768084A, 770379A, 770952C, 770952D, 770952E 5912958, 5915768 Model A340-200 and -300 series airplanes 1720934C, 1720934D, 766351A, 768084A, 770379A, 770952C, 770952D, 770952E 5912958, 5915768 Model A340-500 and -600 series airplanes 772722H, 772722J, 772722L 5912536, 5915769

    (1) For Airbus Model A330-200 Freighter series airplanes; Model A330-200, and A330-300 series airplanes; and Model A340-200 and -300 series airplanes: The RAT actuator or RAT has a serial number listed as affected and modified in Hamilton Sundstrand Service Bulletin ERPS06M-29-21, Revision 1, dated April 14, 2015, and the RAT has been re-identified in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-29-3126, dated June 12, 2014; or Airbus Service Bulletin A340-29-4097, dated June 12, 2014.

    (2) For Airbus Model A340-500 and -600 series airplanes: The RAT actuator or the RAT has a serial number listed as affected and modified in Hamilton Sundstrand Service Bulletin ERPS33T-29-7, dated June 6, 2014, and the RAT has been re-identified in accordance with the Accomplishment Instructions of Airbus Service Bulletin A340-29-5025, dated June 16, 2014.

    (k) Credit for Previous Actions

    (1) This paragraph provides credit for the RAT and RAT actuator identification specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD if that identification was performed before the effective date of this AD using Hamilton Sundstrand Service Bulletin ERPS06M-29-21, dated May 27, 2014, which is not incorporated by reference in this AD.

    (2) This paragraph provides credit for the RAT or RAT actuator identification and modification specified in paragraph (j)(1) of this AD, if those actions were performed before the effective date of this AD using Hamilton Sundstrand Service Bulletin ERPS06M-29-21, dated May 27, 2014, which is not incorporated by reference in this AD.

    (l) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (3) Required for Compliance (RC): If any Airbus service information contains procedures or tests that are identified as RC, those procedures and tests must be done to comply with this AD; any procedures or tests that are not identified as RC are recommended. Those procedures and tests that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the procedures and tests identified as RC can be done and the airplane can be put back in an airworthy condition. Any substitutions or changes to procedures or tests identified as RC require approval of an AMOC.

    (m) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015-0008, dated January 15, 2015, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-3983.

    (2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (n)(4) and (n)(5) of this AD.

    (n) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.

    (i) Airbus Service Bulletin A330-29-3126, dated June 12, 2014.

    (ii) Airbus Service Bulletin A340-29-4097, dated June 12, 2014.

    (iii) Airbus Service Bulletin A340-29-5025, dated June 16, 2014.

    (iv) Hamilton Sundstrand Service Bulletin ERPS06M-29-21, Revision 1, dated April 14, 2015.

    (v) Hamilton Sundstrand Service Bulletin ERPS33T-29-7, dated June 6, 2014.

    (3) For Airbus service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; Internet http://www.airbus.com.

    (4) For Hamilton Sundstrand service information identified in this AD, contact Hamilton Sundstrand, Technical Publications, Mail Stop 302-9, 4747 Harrison Avenue, P.O. Box 7002, Rockford, IL 61125-7002; telephone 860-654-3575; fax 860-998-4564; email [email protected]; Internet http://www.hamiltonsundstrand.com.

    (5) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    (6) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Renton, Washington, on June 23, 2016. Dorr M. Anderson, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-15929 Filed 7-11-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-3987; Directorate Identifier 2015-NM-165-AD; Amendment 39-18580; AD 2016-13-15] RIN 2120-AA64 Airworthiness Directives; Dassault Aviation Airplanes AGENCY:

    Federal Aviation Administration (FAA), Department of Transportation (DOT).

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain Dassault Aviation Model FALCON 7X airplanes. This AD was prompted by a report of improperly drilled bores, located on upper and lower stiffener joints to the Web at a certain frame. This AD requires a one-time inspection of the bores, and repair if necessary. We are issuing this AD to detect and correct an unsatisfactory bore that can adversely affect the structural integrity of the airplane.

    DATES:

    This AD is effective August 16, 2016.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of August 16, 2016.

    ADDRESSES:

    For service information identified in this final rule, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone: 201-440-6700; Internet: http://www.dassaultfalcon.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-3987.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-3987; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION:

    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:

    On the assembly line of Falcon 7X airplanes, defects were detected on left hand and right hand engine pylons. A quality review revealed that bores located on upper and lower stiffener joints to the web at pylon Frame 41 were improperly drilled. Fettlings of borings, for fixing diameter 4 mm [millimeters] and 5 mm, were found ovalized, too deep and having irregular surface qualities under the head of fixing. Dassault Aviation identified the individual airplanes that are potentially affected by this production deficiency.

    This condition, if not detected and corrected, would adversely affect the structural integrity of the airplane.

    To address this potential unsafe condition Dassault Aviation published Service Bulletin (SB) 7X-346 to provide corrective action instructions.

    For the reasons described above, this [EASA] AD requires a one-time [detailed] visual [and rototest] inspection for unsatisfactory bores and, depending on findings, repair of affected stiffener bores.

    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.

    Comments

    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.

    Conclusion

    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.

    Related Service Information Under 1 CFR Part 51

    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.

    Costs of Compliance

    We estimate that this AD affects 55 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Inspection 66 work-hours × $85 per hour = $5,610 $0 $5,610 $308,550

    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:

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Repair 20 work-hours × $85 per hour = $1,700 $149 $1,849

    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.

    Authority for This Rulemaking

    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.

    Regulatory Findings

    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.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    Adoption of the Amendment

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

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-13-15 Dassault Aviation: Amendment 39-18580. Docket No. FAA-2016-3987; Directorate Identifier 2015-NM-165-AD. (a) Effective Date

    This AD is effective August 16, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Dassault Aviation Model FALCON 7X airplanes, certificated in any category, manufacturer serial numbers 1 through 221 inclusive, except serial numbers 182 and 220.

    (d) Subject

    Air Transport Association (ATA) of America Code 53, Fuselage.

    (e) Reason

    This AD was prompted by a report of improperly drilled bores, located on upper and lower stiffener joints to the web at a certain frame. We are issuing this AD to detect and correct an unsatisfactory bore that can adversely affect the structural integrity of the airplane.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Inspect Bores

    Within 4,000 flight cycles or 98 months, whichever occurs first since date of issuance of the original airworthiness certificate or date of issuance of the original export certificate of airworthiness, do a detailed visual and rototest inspection of the bores, located on upper and lower stiffener joints to the web at pylon Frame 41, to determine if the bores are not satisfactory, in accordance with the Accomplishment Instructions of Dassault Service Bulletin 7X-346, dated April 24, 2015.

    (h) Repair

    If, during the inspection required by paragraph (g) of this AD, it is determined that any bore is not satisfactory: Before further flight, repair affected bores, in accordance with the Accomplishment Instructions of Dassault Service Bulletin 7X-346, dated April 24, 2015, except as required by paragraph (i) of this AD.

    (i) Exceptions

    Where the Dassault Service Bulletin 7X-346, dated April 24, 2015, specifies to contact Dassault Aviation: Before further flight, repair using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Dassault Aviation's EASA Design Organization Approval (DOA).

    (j) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Tom Rodriguez, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or EASA; or Dassault Aviation's EASA DOA. If approved by the DOA, the approval must include the DOA-authorized signature.

    (k) Related Information

    Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2015-0204, dated October 8, 2015, for related information. This MCAI may be found on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-3987.

    (l) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.

    (i) Dassault Service Bulletin 7X-346, dated April 24, 2015.

    (ii) Reserved.

    (3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone: 201-440-6700; Internet: http://www.dassaultfalcon.com.

    (4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    (5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Renton, Washington, on June 23, 2016. Dorr M. Anderson, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-15930 Filed 7-11-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-3632; Directorate Identifier 2015-NM-023-AD; Amendment 39-18590; AD 2016-14-09] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

    Federal Aviation Administration (FAA), Department of Transportation (DOT).

    ACTION:

    Final rule.

    SUMMARY:

    We are superseding Airworthiness Directive (AD) 2014-14-06 for all Airbus 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. AD 2014-14-06 required inspecting the aft engine mount retainers for surface finish, cracks, and failure, and replacement if necessary. This new AD requires repetitive inspections for damaged, cracked, broken, and missing aft engine mount retainers, and replacement if necessary. This AD 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. 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.

    DATES:

    This AD is effective August 16, 2016.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of August 16, 2016.

    The Director of the Federal Register approved the incorporation by reference of certain other publications listed in this AD as of August 27, 2014 (79 FR 42655, July 23, 2014).

    ADDRESSES:

    For Airbus service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; Internet http://www.airbus.com.

    For Goodrich Aerostructures service information identified in this AD, contact Goodrich Aerostructures, 850 Lagoon Drive, Chula Vista, CA 91910-2098; telephone 619-691-2719; email [email protected]; Internet http://www.goodrich.com/TechPubs.

    You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3632.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3632; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1405; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION:

    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:

    During in-service inspections, several aft engine mount retainers, fitted on aeroplanes equipped with CFM56-5A/5B engines, have been found broken. The results of the initial investigations highlighted that two different types of surface finish had been applied (respectively bright and dull material finishes), and that dull finish affects the strength of the retainer with regard to fatigue properties of the part. The pins which attach the engine link to the aft mount are secured by two nuts, which do not have a self-locking feature; this function is provided by the retainer brackets. In case of failure of the retainer bracket, the locking feature of the nuts of the inner and outer pins is lost; as a result, these nuts could subsequently become loose.

    In case of full loss of the nuts, there is the potential to also lose the pins, in which case the aft mount link will no longer be secured to the aft engine mount. The same locking feature is used for the three link assemblies of the aft mount.

    This condition, if not detected and corrected, could lead to in-flight loss of an aft mount link, possibly resulting in damage to the aeroplane and injury to person on the ground.

    To address this potential unsafe condition, EASA issued AD 2013-0050 (http://ad.easa.europa.eu/blob/easa_ad_2013_0050_superseded.pdf/AD_2013-0050_1 [which corresponds to FAA AD 2014-14-06] to require detailed inspections (DET) of the aft engine mount retainers and the replacement of all retainers with dull finish with retainers having a bright finish.

    Since that [EASA] AD was issued, inspection results have shown that the main cause of crack initiation remains the vibration dynamic effect that affects both retainers, either with “dull” or “bright” surface finishes. The non-conforming “dull” surface's pitting is an aggravating factor.

    For the reasons described above, this [EASA] AD retains the requirements of EASA AD 2013-0050, which is superseded, and requires repetitive DET of all aft engine mount retainers and, depending on findings [damaged, cracked, broken, or missing retainers], their replacement.

    This [EASA] AD is considered to be an interim action, pending development and availability of a final solution.

    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.

    Comments

    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.

    Request To Use Alternative Inspection Method

    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.

    Request To Use Later Revisions of Service Information

    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.

    Conclusion

    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.

    Related Service Information Under 1 CFR Part 51

    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.

    Costs of Compliance

    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.

    Paperwork Reduction Act

    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.

    Authority for This Rulemaking

    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.

    Regulatory Findings

    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.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    Adoption of the Amendment

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

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2014-14-06, Amendment 39-17901 (79 FR 42655, July 23, 2014), and adding the following new AD: 2016-14-09 Airbus: Amendment 39-18590. Docket No. FAA-2015-3632; Directorate Identifier 2015-NM-023-AD. (a) Effective Date

    This AD is effective August 16, 2016.

    (b) Affected ADs

    This AD replaces AD 2014-14-06, Amendment 39-17901 (79 FR 42655, July 23, 2014) (“AD 2014-14-06”).

    (c) Applicability

    This AD applies to the Airbus airplanes identified in paragraphs (c)(1) through (c)(4) of this AD, certificated in any category, all manufacturer serial numbers.

    (1) Airbus Model A318-111 and -112 airplanes.

    (2) Airbus Model A319-111, -112, -113, -114, and -115 airplanes.

    (3) Airbus Model A320-211, -212, and -214 airplanes.

    (4) Airbus Model A321-111, -112, -211, -212, and -213 airplanes.

    (d) Subject

    Air Transport Association (ATA) of America Code 71, Powerplant.

    (e) Reason

    This AD 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. 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.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Retained Inspection, With No Changes

    This paragraph restates the requirements of paragraph (g) of AD 2014-14-06, with no changes. Within 3 months after August 27, 2014 (the effective date of AD 2014-14-06): Do a detailed inspection of the aft engine mount retainers for surface finish (dull or bright), and for cracks and failure, in accordance with Section 4.2.2, “Inspection Requirements,” of Airbus Alert Operators Transmission (AOT) A71N001-12, Rev. 2, dated February 27, 2013, except as specified in paragraph (h) of this AD.

    (h) Retained Exception to Paragraph (g) of This AD, With No Changes

    This paragraph restates the requirements of paragraph (h) of AD 2014-14-06, with no changes. The actions required by paragraph (g) of this AD are not required to be done on airplanes with manufacturer serial numbers 4942 and higher, provided a review of maintenance records verifies that no aft engine mount retainers have been replaced since first flight of the airplane.

    (i) Retained Repetitive Inspection and Retainer Replacement for Dull Finish Retainers, With No Changes

    This paragraph restates the requirements of paragraph (i) of AD 2014-14-06, with no changes. If, during the detailed inspection required by paragraph (g) of this AD, any installed dull finish aft engine mount retainer is found without cracks and not failed: Do the actions specified in paragraphs (i)(1) and (i)(2) of this AD.

    (1) Within 25 flight cycles after doing the actions required by paragraph (g) of this AD: Repeat the detailed inspection specified in paragraph (g) of this AD.

    (2) Within 50 flight cycles after doing the first detailed inspection specified in paragraph (g) of this AD: Replace all dull finish retainers with new retainers, in accordance with Section 4.2.3.1, “Replacement Procedure,” of Airbus AOT A71N001-12, Rev. 2, dated February 27, 2013.

    (j) Retained Replacement of Cracked or Failed Retainers, With No Changes

    This paragraph restates the requirements of paragraph (j) of AD 2014-14-06, with no changes. If, during any detailed inspection specified in paragraph (g) of this AD, any installed aft engine mount retainer is found cracked or failed: Before further flight, replace all affected aft engine mount retainers with new retainers, in accordance with Section 4.2.3, “Replacement Procedure,” of Airbus AOT A71N001-12, Rev. 2, dated February 27, 2013.

    (k) Retained Parts Prohibition, With No Changes

    This paragraph restates the requirements of paragraph (k) of AD 2014-14-06, with no changes. As of August 27, 2014 (the effective date of AD 2014-14-06), no person may install any aft engine mount retainer with a dull finish on any airplane. The instructions of Airbus AOT A71N001-12, Rev. 2, dated February 27, 2013; or the Accomplishment Instructions of Goodrich Service Bulletin RA32071-146, Rev. 2, dated July 26, 2012; may be used to verify the correct finish of the part.

    (l) New Requirement of This AD: Repetitive Inspections

    At the latest of the applicable times specified in paragraphs (l)(1), (l)(2), and (l)(3) of this AD: Do a detailed inspection for damaged, cracked, broken, or missing aft engine mount retainers, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-71-1060, Revision 01, dated April 7, 2015; or Goodrich Service Bulletin RA32071-160, dated September 18, 2014. Repeat the inspection of the aft engine mount retainers thereafter at intervals not to exceed 12 months.

    (1) Within 12 months since the date of issuance of the original airworthiness certificate or the date of issuance of the original export certificate of airworthiness.

    (2) Within 12 months after installation of new retainers.

    (3) Within 9 months after the effective date of this AD.

    (m) New Requirement of This AD: Replacement of Retainers With Findings

    If, during any detailed inspection specified in paragraph (l) of this AD, any installed aft engine mount retainer is found damaged, cracked, broken, or missing: Before further flight, replace all affected aft engine mount retainers with new retainers, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-71-1060, Revision 01, dated April 7, 2015.

    (n) New Requirement of This AD: No Terminating Action

    Replacement of retainers on an airplane, as required by paragraph (m) of this AD, does not constitute terminating action for the repetitive inspections required by paragraph (l) of this AD for that airplane.

    (o) New Requirement of This AD: Required Reporting

    Submit a report of positive findings of any inspection required by paragraph (l) of this AD to Airbus at the applicable time specified in paragraph (o)(1) or (o)(2) of this AD. The report must include the inspection results, a description of any discrepancies found, the airplane serial number, and the number of landings and flight hours on the airplane.

    (1) If the inspection was done on or after the effective date of this AD: Submit the report within 30 days after the inspection.

    (2) If the inspection was done before the effective date of this AD: Submit the report within 30 days after the effective date of this AD.

    (p) Credit for Previous Actions

    (1) This paragraph restates the provisions of paragraph (l) of AD 2014-14-06, with no changes. This paragraph provides credit for actions required by paragraphs (g), (i), and (j) of this AD, if those actions were performed before August 27, 2014 (the effective date of AD 2014-14-06) using Airbus AOT A71N001-12, Rev. 1, dated August 9, 2012. This service information is not incorporated by reference in this AD.

    (2) This paragraph provides credit for actions required by paragraph (l) of this AD, if those actions were performed before the effective date of this AD using Airbus Service Bulletin A320-71-1060, dated October 9, 2014. Airbus Service Bulletin A320-71-1060, dated October 9, 2014, is not incorporated by reference in this AD.

    (3) This paragraph provides credit for actions required by paragraph (m) of this AD, if those actions were performed before the effective date of this AD using Airbus Service Bulletin A320-71-1060, dated October 9, 2014, provided that it can be conclusively determined that the torque value units applicable to nut item (14) that are specified in Airbus Service Bulletin A320-71-1060, Revision 01, dated April 7, 2015, have been used. Airbus Service Bulletin A320-71-1060, dated October 9, 2014, is not incorporated by reference in this AD.

    (q) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1405; fax 425-227-1149. Information may be emailed to: [email protected]

    (i) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

    (ii) AMOCs approved previously for AD 2014-14-06, are approved as AMOCs for the corresponding provisions of paragraphs (g), (i), (j), and (k) of this AD.

    (2) Contacting the Manufacturer: As of the effective date of this AD, for any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (3) Reporting Requirements: A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a 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 OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are 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.

    (4) Required for Compliance (RC): If any Airbus service information contains procedures or tests that are identified as RC, those procedures and tests must be done to comply with this AD; any procedures or tests that are not identified as RC are recommended. Those procedures and tests that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the procedures and tests identified as RC can be done and the airplane can be put back in a serviceable condition. Any substitutions or changes to procedures or tests identified as RC require approval of an AMOC.

    (r) Special Flight Permits

    Special flight permits, as described in Section 21.197 and Section 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199), are not allowed.

    (s) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015-0021, dated February 13, 2015, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3632.

    (2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (t)(5), (t)(6), and (t)(7) of this AD.

    (t) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.

    (3) The following service information was approved for IBR on August 16, 2016.

    (i) Airbus Service Bulletin A320-71-1060, Revision 01, dated April 7, 2015.

    (ii) Goodrich Service Bulletin RA32071-160, dated September 18, 2014.

    (4) The following service information was approved for IBR on August 27, 2014 (79 FR 42655, July 23, 2014).

    (i) Airbus Alert Operators Transmission A71N001-12, Rev. 2, dated February 27, 2013. The first page of this document contains the document number, revision, and date; no other page of this document contains this information.

    (ii) Goodrich Service Bulletin RA32071-146, Rev. 2, dated July 26, 2012.

    (5) For Airbus service information identified in this AD, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; Internet http://www.airbus.com.

    (6) For Goodrich Aerostructures service information identified in this AD, contact Goodrich Aerostructures, 850 Lagoon Drive, Chula Vista, CA 91910-2098; telephone 619-691-2719; email [email protected]; Internet http://www.goodrich.com/TechPubs.

    (7) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    (8) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Renton, Washington, on July 1, 2016. Phillip Forde, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-16212 Filed 7-11-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-0459; Directorate Identifier 2015-NM-081-AD; Amendment 39-18589; AD 2016-14-08] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

    Federal Aviation Administration (FAA), Department of Transportation (DOT).

    ACTION:

    Final rule.

    SUMMARY:

    We are superseding Airworthiness Directive (AD) 2015-10-03 for certain Airbus Model A330-200 and -300 series airplanes, and Model A340-200 and -300 series airplanes. AD 2015-10-03 required a detailed inspection for visible chrome of each affected main landing gear (MLG) sidestay upper cardan pin, associated nuts, and retainer assembly; pin replacement if needed; measurement of cardan pin clearance dimensions (gap check); corrective actions if necessary; and a report of all findings. This new AD requires a detailed inspection of the upper cardan pin and nut threads for any corrosion, pitting, or thread damage, and if necessary, replacement of the cardan pin and nut. This new AD also revises the applicability to include additional airplane models. This AD was prompted by a report that an MLG sidestay upper cardan pin migration event had been caused by corrosion due to lack of jointing compound and inadequate sealant application during the MLG installation. We are issuing this AD to detect and correct migration of the sidestay upper cardan pin, which could result in disconnection of the sidestay upper arm from the airplane structure, and could result in a landing gear collapse and consequent damage to the airplane and injury to occupants.

    DATES:

    This AD is effective August 16, 2016.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of August 16, 2016.

    ADDRESSES:

    For service information identified in this final rule, contact Airbus SAS—Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; Internet http://www.airbus.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-0459.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-0459; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION:

    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:

    An A330 aeroplane equipped with Basic MLG was rolling out after landing when it experienced a nose wheel steering fault (unrelated to the safety subject addressed by this AD), which resulted in the crew stopping the aeroplane on the taxiway after vacating the runway. The subsequent investigation revealed that the right-hand MLG sidestay upper cardan pin had migrated out of position. The sidestay upper cardan nut and retainer had detached from the upper cardan pin and were found, still bolted together, in the landing gear bay.

    Prompted by these findings, Airbus published Alert Operators Transmission (AOT) A32L003-14, providing inspection instructions and, as an interim solution, EASA issued AD 2014-0066 [which corresponds to FAA AD 2015-10-03, Amendment 39-18158 (80 FR 30608, May 29, 2015)] to require repetitive detailed inspections (DET) of the MLG upper cardan pin, nut and retainer. That AD also required accomplishment of a one-time gap check between wing rear spar fitting lugs and the bush flanges and, depending on findings, corrective action(s). The gap check (including corrections, as necessary) terminated the repetitive DET.

    Since that [EASA] AD was issued, further investigation concluded that the reported MLG sidestay upper cardan pin migration event had been caused by corrosion, due to lack of jointing compound and inadequate sealant application during MLG installation. Therefore, this issue affects any MLG that had an upper cardan pin replacement or re-installation, irrespective of MLG overhaul. Any corrosion on the upper cardan pin and nut threads would not have been detected during the previously required DET.

    This condition, if not detected and corrected, could lead to a complete migration of the sidestay upper cardan pin and a disconnection of the sidestay upper arm from the aeroplane structure, possibly resulting in MLG collapse with consequent damage to the aeroplane and injury to occupants.

    To address this potential unsafe condition, Airbus published Service Bulletin (SB) A330-32-3269, SB A340-32-4301 and SB A340-32-5115 providing inspection instructions. In addition, to prevent any improper re-installation of an upper cardan pin on a MLG, Airbus amended the applicable Aircraft Maintenance Manual (AMM) on 01 October 2014.

    For the reasons described above, this [EASA] AD supersedes EASA [AD] 2014-0066 and requires a one-time DET of the MLG upper cardan pin and nut threads to check for corrosion or damage on the upper cardan pin and nut threads, and, depending on findings, replacement of the damaged part(s).

    As this unsafe condition could also develop on A330 freighters and A340-500/-600 aeroplanes, this [EASA] AD also applies to those aeroplanes.

    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-2016-0459. Comments

    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.

    Request To Use the Latest Service Information

    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.

    Conclusion

    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.

    Related Service Information Under 1 CFR Part 51

    Airbus has issued the following service information:

    • Airbus Service Bulletin A330-32-3269, Revision 01, dated December 3, 2015. • Airbus Service Bulletin A340-32-4301, Revision 01, dated December 3, 2015. • Airbus Service Bulletin A340-32-5115, Revision 01, dated December 11, 2015.

    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.

    Costs of Compliance

    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.

    Authority for This Rulemaking

    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.

    Regulatory Findings

    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.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    Adoption of the Amendment

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

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2015-10-03, Amendment 39-18158 (80 FR 30608, May 29, 2015), and adding the following new AD: 2016-14-08 Airbus: Amendment 39-18589. Docket No. FAA-2016-0459; Directorate Identifier 2015-NM-081-AD. (a) Effective Date

    This AD is effective August 16, 2016.

    (b) Affected ADs

    This AD replaces 2015-10-03, Amendment 39-18158 (80 FR 30608, May 29, 2015).

    (c) Applicability

    This AD applies to the airplanes, certificated in any category, identified in paragraphs (c)(1), (c)(2), and (c)(3) of this AD, except airplanes on which an upper cardan pin on a main landing gear (MLG) has never been replaced or reinstalled since first entry into service of the airplane.

    (1) Airbus Model A330-201, -202, -203, -223, -223F, -243, -243F, -301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes, all manufacturer serial numbers.

    (2) Airbus Model A340-211, -212, -213, -311, -312, and -313 airplanes, all manufacturer serial numbers.

    (3) Airbus Model A340-541 and -642 airplanes, all manufacturer serial numbers.

    (d) Subject

    Air Transport Association (ATA) of America Code 32, Landing Gear.

    (e) Reason

    This AD was prompted by a report that an MLG sidestay upper cardan pin migration event had been caused by corrosion due to lack of jointing compound and inadequate sealant application during the MLG installation. We are issuing this AD to detect and correct migration of the sidestay upper cardan pin, which could result in disconnection of the sidestay upper arm from the airplane structure, and could result in a landing gear collapse and consequent damage to the airplane and injury to occupants.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Definition

    For the purpose of this AD, an upper cardan pin on a MLG is affected if it has been installed as a replacement part, or reinstalled since first entry of the airplane into service, and if the installation was accomplished using the applicable airplane maintenance manual at a revision level prior to October 1, 2014.

    (h) Inspection and Replacement

    (1) For an affected upper cardan pin on an MLG: Before exceeding 96 months since its latest installation on an airplane, or within 12 months after the effective date of this AD, whichever occurs later, do a detailed inspection of the upper cardan pin and nut threads for any corrosion, pitting, or thread damage, in accordance with the Accomplishment Instructions of the applicable service information specified in paragraph (i) of this AD.

    (2) If, during the detailed inspection specified in paragraph (h)(1) of this AD, any corrosion, pitting, or thread damage is found, before further flight, replace the upper cardan pin and/or nut, as applicable, in accordance with the Accomplishment Instructions of the applicable service information specified in paragraph (i) of this AD.

    (i) Applicable Service Information

    Do the actions required by paragraph (h) of this AD in accordance with the Accomplishment Instructions of the applicable service information identified in paragraphs (i)(1), (i)(2), and (i)(3) of this AD.

    (1) Airbus Service Bulletin A330-32-3269, Revision 01, dated December 3, 2015 (for Airbus Model A330-201, -202, -203, -223, -223F, -243, -243F, -301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes).

    (2) Airbus Service Bulletin A340-32-4301, Revision 01, dated December 3, 2015 (for Airbus Model A340-211, -212, -213, -311, -312, and -313 airplanes).

    (3) Airbus Service Bulletin A340-32-5115, Revision 01, dated December 11, 2015 (for Airbus Model A340-541 and -642 airplanes).

    (j) Credit for Previous Actions

    This paragraph provides credit for the actions specified in paragraph (h) of this AD, if those actions were performed before the effective date of this AD using the applicable service information identified in paragraphs (j)(1), (j)(2), and (j)(3) of this AD. This service information is not incorporated by reference in this AD.

    (1) Airbus Service Bulletin A330-32-3269, dated February 17, 2015.

    (2) Airbus Service Bulletin A340-32-4301, dated February 17, 2015.

    (3) Airbus Service Bulletin A340-32-5115, dated February 17, 2015.

    (k) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM 116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1138; fax 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

    (2) Contacting the Manufacturer: As of the effective date of this AD, for any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (l) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015-0079, dated May 7, 2015, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-0459.

    (2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (m)(3) and (m)(4) of this AD.

    (m) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.

    (i) Airbus Service Bulletin A330-32-3269, Revision 01, dated December 3, 2015.

    (ii) Airbus Service Bulletin A340-32-4301, Revision 01, dated December 3, 2015.

    (iii) Airbus Service Bulletin A340-32-5115, Revision 01, dated December 11, 2015.

    (3) For service information identified in this AD, contact Airbus SAS—Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; Internet http://www.airbus.com.

    (4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    (5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Renton, Washington, on June 28, 2016. John P. Piccola, Jr., Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-16316 Filed 7-11-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-8129; Directorate Identifier 2014-NM-197-AD; Amendment 39-18573; AD 2016-13-09] RIN 2120-AA64 Airworthiness Directives; Bombardier, Inc. Airplanes AGENCY:

    Federal Aviation Administration (FAA), Department of Transportation (DOT).

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain Bombardier, Inc. Model CL-600-2B16 (CL-604 Variant) airplanes. This AD was prompted by a determination that certain maintenance tasks for the horizontal stabilizer trim actuator (HSTA) are inadequate. This AD requires 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.

    DATES:

    This AD becomes effective August 16, 2016.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of August 16, 2016.

    ADDRESSES:

    For service information identified in this final rule, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center, toll-free telephone 1-866-538-1247, or direct dial telephone 1-514-855-2999; fax 1-514-855-7401; email [email protected]; Internet http://www.bombardier.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-8129.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-8129; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section.

    FOR FURTHER INFORMATION CONTACT:

    Cesar Gomez, Aerospace Engineer, Airframe and Mechanical Systems Branch, ANE-171, FAA, New York Aircraft Certification Office, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7318; fax 516-794-5531.

    SUPPLEMENTARY INFORMATION:

    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:

    A revision has been made to the CL 604/605 Time Limits/Maintenance Checks (TLMC) manual, to introduce new tasks for the HSTA. Failure to comply with the TLMC tasks could lead to an unsafe condition.

    This [Canadian] AD is issued to ensure that premature wear and cracking of the affected components are detected and corrected.

    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.

    Comments

    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.

    Request To Change the Manufacturer's Contact Information

    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.

    Conclusion

    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.

    Related Service Information Under 1 CFR Part 51

    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.

    Costs of Compliance

    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.

    Authority for This Rulemaking

    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.

    Regulatory Findings

    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.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    Adoption of the Amendment

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

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-13-09 Bombardier, Inc.: Amendment 39-18573. Docket No. FAA-2015-8129; Directorate Identifier 2014-NM-197-AD. (a) Effective Date

    This AD becomes effective August 16, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Bombardier, Inc. Model CL-600-2B16 (CL-604 Variant) airplanes, certificated in any category, serial numbers (S/Ns) 5301 through 5665 inclusive, and 5701 through 5962 inclusive.

    (d) Subject

    Air Transport Association (ATA) of America Code 27, Flight Controls.

    (e) Reason

    This AD was prompted by a determination that certain maintenance tasks for the horizontal stabilizer trim actuator (HSTA) are inadequate. 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.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Maintenance or Inspection Program Revision

    Within 30 days after the effective date of this AD: Revise the maintenance or inspection program, as applicable, to incorporate Task 27-42-01-109, Restoration (Overhaul) of the Horizontal Stabilizer Trim Actuator, Part No. 604-92305-7 and Subs (Vendor Part No. 8454-3 and Subs); and Task 27-42-01-111, Detailed Inspection of the Horizontal Trim Actuator (HSTA) Secondary Load Path Indicator, Part No. 604-92305-7 and Subs (Vendor Part No. 8454-3 and Subs); of the applicable document identified in paragraph (g)(1) or (g)(2) of this AD.

    (1) For Model CL-600-2B16 (CL-604 Variant) airplanes, serial numbers 5301 through 5665 inclusive: 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.

    (2) For Model CL-600-2B16 (CL-604 Variant) airplanes, serial numbers 5701 through 5962 inclusive: 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.

    (h) No Alternative Actions or Intervals

    After the maintenance or inspection program has been revised, as required by paragraph (g) of this AD, no alternative actions (e.g., inspections) or intervals may be used unless the actions or intervals are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (i)(1) of this AD.

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, New York Aircraft Certification Office (ACO), ANE-170, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the ACO, send it to ATTN: Program Manager, Continuing Operational Safety, FAA, New York ACO, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; fax 516-794-5531. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, New York ACO, ANE-170, FAA; or Transport Canada Civil Aviation (TCCA); or Bombardier, Inc.'s TCCA Design Approval Organization (DAO). If approved by the DAO, the approval must include the DAO-authorized signature.

    (j) Related Information

    Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian Airworthiness Directive CF-2014-30, dated September 5, 2014, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-8129.

    (k) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.

    (2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.

    (i) 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.

    (ii) 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.

    (3) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center, toll-free telephone 1-866-538-1247, or direct dial telephone 1-514-855-2999; fax 1-514-855-7401; email [email protected]; Internet http://www.bombardier.com.

    (4) You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    (5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Renton, Washington, on June 21, 2016. Dorr M. Anderson, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-15354 Filed 7-11-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 39 [Docket No. RM15-25-000; Order No. 824] Availability of Certain North American Electric Reliability Corporation Databases to the Commission AGENCY:

    Federal Energy Regulatory Commission, Department of Energy.

    ACTION:

    Final rule.

    SUMMARY:

    The Federal Energy Regulatory Commission (Commission) amends its regulations to require the North American Electric Reliability Corporation (NERC) to provide the Commission, and Commission staff, with access, on a non-public and ongoing basis, to certain databases compiled and maintained by NERC. The amended regulation applies to the following NERC databases: The Transmission Availability Data System, the Generating Availability Data System, and the protection system misoperations database. Access to these databases, which will be limited to data regarding U.S. facilities provided to NERC on a mandatory basis, will provide the Commission with information necessary to determine the need for new or modified Reliability Standards and to better understand NERC's periodic reliability and adequacy assessments.

    DATES:

    Effective date: This rule will become effective July 12, 2016.

    Compliance date: The compliance date is based on issuance of the final rule in Docket No. RM16-15-000. The Commission will publish a document in the Federal Register announcing the compliance date.

    FOR FURTHER INFORMATION CONTACT:

    Raymond Orocco-John (Technical Information), Office of Electric Reliability, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: (202) 502-6593, [email protected] Julie Greenisen (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: (202) 502-6362, [email protected] SUPPLEMENTARY INFORMATION:

    Order No. 824 Final Rule

    1. The Commission amends its regulations, pursuant to section 215 of the Federal Power Act (FPA),1 to require the North American Electric Reliability Corporation (NERC) to provide the Commission, and Commission staff, with access, on a non-public and ongoing basis, to certain databases compiled and maintained by NERC. The amended regulation applies to the following NERC databases: (1) The Transmission Availability Data System (TADS), (2) the Generating Availability Data System (GADS), and (3) the protection system misoperations database. Access to these databases, which will be limited to data regarding U.S. facilities provided to NERC on a mandatory basis, will provide the Commission with information necessary to determine the need for new or modified Reliability Standards and to better understand NERC's periodic reliability and adequacy assessments.

    1 16 U.S.C. 824o.

    I. Background A. Section 215 and Order No. 672

    2. Section 215 of the FPA requires the Commission to certify an Electric Reliability Organization (ERO), responsible for developing mandatory and enforceable Reliability Standards, subject to Commission review and approval. Reliability Standards may be enforced by NERC, subject to Commission oversight, or by the Commission independently.2 In addition, section 215(g) of the FPA requires the ERO to conduct periodic assessments of the reliability and adequacy of the Bulk-Power System in North America.3 Pursuant to section 215 of the FPA, the Commission established a process to select and certify an ERO,4 and subsequently certified NERC as the ERO.

    2 16 U.S.C. 824o(e).

    3Id. 824o(g).

    4Rules Concerning Certification of the Electric Reliability Organization; and Procedures for the Establishment, Approval, and Enforcement of Electric Reliability Standards, Order No. 672, FERC Stats. & Regs. ¶ 31,204, order on reh'g, Order No. 672-A, FERC Stats. & Regs. ¶ 31,212 (2006).

    3. Section 39.2(d) of the Commission's regulations requires NERC and each Regional Entity to “provide the Commission such information as is necessary to implement section 215 of the Federal Power Act.” 5 Section 39.2(d) of the Commission's regulations also requires each user, owner and operator of the Bulk-Power System within the United States (other than Alaska and Hawaii) to provide the Commission, NERC and each applicable Regional Entity with “such information as is necessary to implement section 215 of the Federal Power Act as determined by the Commission and set out in the Rules of the Electric Reliability Organization and each applicable Regional Entity.” 6

    5 18 CFR 39.2(d).

    6Id.

    4. The Commission promulgated section 39.2(d) of its regulations in Order No. 672.7 The Commission explained in Order No. 672 that:

    7 Order No. 672, FERC Stats. & Regs. ¶ 31,204 at P 114.

    The Commission agrees . . . that, to fulfill its obligations under this Final Rule, the ERO or a Regional Entity will need access to certain data from users, owners and operators of the Bulk-Power System. Further, the Commission will need access to such information as is necessary to fulfill its oversight and enforcement roles under the statute.8

    8Id.

    B. NERC Databases

    5. NERC conducts ongoing, mandatory data collections from registered entities to populate databases for transmission outages through TADS, generation outages through GADS, and protection system misoperations through NERC's protection system misoperations database. Each of these NERC databases is discussed below.

    1. TADS Database

    6. NERC initiated collection of TADS data on a mandatory basis in 2007 by issuing a data request pursuant to section 1600 of the NERC Rules of Procedure.9 The request required that, beginning in January 2008, applicable entities provide certain data for the TADS database based on a common template.10 In 2010, NERC expanded its collection of TADS data to include additional fields of information on transmission outages.11

    9See generally NERC, Summary of Phase I TADS Data Collection (November 9, 2007), http://www.nerc.com/pa/RAPA/tads/TADSTF%20Archives%20DL/TADS_Data_Request_Summary.pdf.

    10See generally NERC, Transmission Availability Data System (TADS) Data Reporting Instruction Manual (November 20, 2007), http://www.nerc.com/comm/PC/Transmission%20Availability%20Data%20System%20Working%20Grou/TADSTF%20Archives/Data_Reporting_Instr_Manual_11_20_07.pdf.

    11See generally NERC, Transmission Availability Data System Phase II Final Report (September 11, 2008), http://www.nerc.com/pa/RAPA/tads/TransmissionAvailabilityDataSyatemRF/TADS_Phase_II_Final_Report_091108.pdf.

    7. The TADS database compiles transmission outage data in a common format for: (1) Bulk electric system AC circuits (overhead and underground); (2) transmission transformers (except generator step-up units); (3) bulk electric system AC/DC back-to-back converters; and (4) bulk electric system DC circuits.12 The TADS data collection template includes the following information fields: (1) Type of facilities, (2) outage start time and duration, (3) event type, (4) initiating cause code, and (5) sustained cause code (for sustained outages).13 “Cause codes” for common causes of transmission outages include: (1) Lightning, (2) fire, (3) vandalism, (4) failed equipment (with multiple sub-listings), (5) vegetation, and (6) “unknown.” 14 There were 10,787 reported TADS events between 2012 and 2014.15

    12See NERC TADS Home Page, http://www.nerc.com/pa/RAPA/tads/Pages/default.aspx.

    13See Transmission Availability Data System (TADS) Data Reporting Instruction Manual (August 1, 2014), http://www.nerc.com/pa/RAPA/tads/Documents/2015_TADS_DRI.pdf.

    14See Transmission Availability Data System Definitions (August 1, 2014), http://www.nerc.com/pa/RAPA/tads/Documents/2015_TADS_Appendix_7.pdf.

    15See, e.g., NERC, State of Reliability 2015, Appendix A (Statistical Analysis for Risk Issue Identification and Transmission Outage Severity Analysis) at 86 (May 2015), http://www.nerc.com/pa/RAPA/PA/Performance%20Analysis%20DL/2015%20State%20of%20Reliability.pdf. The most recent data reported by NERC for TADS events is for the period 2012-2014.

    8. NERC uses TADS data to develop transmission metrics to analyze outage frequency, duration, causes, and other factors related to transmission outages.16 NERC also provides individual transmission owners with TADS metrics for their facilities.17 NERC issues an annual public report based on TADS data that shows aggregate metrics for each NERC Region, with the underlying data accorded confidential treatment.18

    16See NERC TADS Home Page.

    17Id.

    18Id.

    2. GADS Database

    9. NERC's collection of GADS data has been mandatory since 2012, pursuant to a data request issued in accordance with section 1600 of the NERC Rules of Procedure.19 The GADS database collects, records, and retrieves operating information on power plant availability, including event, performance, and design data.20 GADS data are used to support equipment reliability and availability analyses, as well as benchmarking studies.21

    19See NERC, Generating Availability Data System Mandatory Reporting of Conventional Generation Performance Data at 2 (July 2011), http://www.nerc.com/pa/RAPA/gads/MandatoryGADS/Revised_Final_Draft_GADSTF_Recommendation_Report.pdf; see also NERC GADS Home Page, http://www.nerc.com/pa/RAPA/gads/Pages/default.aspx.

    20See NERC GADS Home Page.

    21Id.

    10. Currently, GADS collects outage data pertaining to ten types of conventional generating units with capacity of 20 MW and larger, including: (1) Fossil steam including fluidized bed design; (2) nuclear; (3) gas turbines/jet engines; (4) internal combustion engines (diesel engines); (5) hydro units/pumped storage; (6) combined cycle blocks and their related components; (7) cogeneration blocks and their related components; (8) multi-boiler/multi-turbine units; (9) geothermal units; and (10) other miscellaneous conventional generating units (e.g., biomass, landfill gases).22 The GADS data collection template includes the following design, event, and performance information: (1) Design records, (2) event records, and (3) performance records.23 Design records refer to the characteristics of each unit such as GADS utility code,24 GADS unit code,25 NERC Regional Entity where the unit is located, name of the unit, commercial operating date, and type of generating unit (fossil, combined cycle, etc.).26 Event records include information about when and to what extent the generating unit could not generate power.27 Performance records refer to monthly generation, unit‐attempted starts, actual starts, summary event outage information, and fuels.28 NERC has developed “cause codes” for the identification of common causes of unit outages based on the type of generating unit.29 For example, the cause codes section for fossil steam units includes codes for the boiler, steam turbine, generator, balance of plant, pollution control equipment, external, regulatory, safety and environmental, personnel errors, and performance testing.30 For 2011-2013, the GADS database contains data from more than 5,000 units.31

    22 Generating Availability Data System Mandatory Reporting of Conventional Generation Performance Data at 15.

    23Id., Appendix V (Rules of Procedure Section 1600 Justification) at 35.

    24 The GADS utility code is a code number referencing the utility that owns a generator.

    25 The GADS unit code is a code name referencing the generating unit involved. The GADS unit code may or may not contain the name of the generator owner.

    26Id.

    27Id.

    28Id.

    29 NERC, Generating Availability Data System Data Reporting Instructions (January 1, 2015), Appendix B (Index to System/Component Cause Codes) at 1, http://www.nerc.com/pa/RAPA/gads/DataReportingInstructions/Appendix_B1_Fossil_Steam_Unit_Cause_Codes.pdf. The most recent data reported by NERC for GADS events is for the period 2011-2013.

    30Id.

    31 State of Reliability 2015, Appendix B (Analysis of Generation Data) at 107.

    11. NERC uses GADS data to measure generation reliability and publishes aggregate performance metrics for each NERC Region in publicly available annual state of reliability and reliability assessment reports.32 The underlying data are typically accorded confidential treatment.

    32See, e.g., id., Appendix B (Analysis of Generation Data).

    3. Protection System Misoperations Database

    12. The reporting of protection system misoperations data by transmission owners, generator owners and distribution providers has been mandatory since 2011 pursuant to Reliability Standard PRC-004.33 Following implementation of Reliability Standard PRC-004-4, the obligation to report misoperation data will remain mandatory but will be accomplished through a data request pursuant to section 1600 of the NERC Rules of Procedure.34

    33 The Commission approved Reliability Standard PRC-004-1 (Analysis and Reporting of Transmission Protection System Misoperations) in Order No. 693. Mandatory Reliability Standards for the Bulk-Power System, Order No. 693, FERC Stats. & Regs. ¶ 31,242, at PP 1467-1469, order on reh'g, Order No. 693-A, 120 FERC ¶ 61,053 (2007). The Commission subsequently approved the following revisions and interpretations to Reliability Standard PRC-004, which was first renamed Analysis and Mitigation of Transmission and Generation Protection System Misoperations and then renamed Protection System Misoperation Identification and Correction: Reliability Standards PRC-004-1a, PRC-004-2, PRC-004-2a, PRC-004-2.1a, PRC-004-2.1(i)a, PRC-004-3, and PRC-004-4. See North American Electric Reliability Corp., 136 FERC ¶ 61,208 (2011) (approving interpretation resulting in Reliability Standard PRC-004-1a and Reliability Standard PRC-004-2a); North American Electric Reliability Corp., 134 FERC ¶ 61,015 (2011) (approving Reliability Standard PRC-004-2); Generator Requirements at the Transmission Interface, Order No. 785, 144 FERC ¶ 61,221 (2013) (approving Reliability Standard PRC-004-2.1a); North American Electric Reliability Corp., 151 FERC ¶ 61,129 (2015) (approving Reliability Standard PRC-004-3); North American Electric Reliability Corp., 151 FERC ¶ 61,186 (2015) (approving Reliability Standards PRC-004-2.1(i)a and PRC-004-3); North American Electric Reliability Corp., Docket No. RD15-5-000 (Nov. 19, 2015) (delegated letter order) (approving Reliability Standard PRC-004-4); North American Electric Reliability Corp., Docket No. RD14-14-001, et al. (Dec. 4, 2015) (delegated letter order) (approving Reliability Standard PRC-004-4(i) and PRC-004-5(i)).

    34See generally NERC, Request for Data or Information Protection System Misoperation Data Collection (August 14, 2014), http://www.nerc.com/pa/RAPA/ProctectionSystemMisoperations/PRC-004-3%20Section%201600%20Data%20Request_20140729.pdf. Reliability Standard PRC-004-4 will become enforceable on July 1, 2016.

    13. Currently, the protection system misoperations database collects more than 20 data fields for a reportable misoperation event, including: (1) Misoperation date; (2) event description; (3) protection systems/components that misoperated; (4) equipment removed from service (permanently or temporarily) as the result of the misoperation; (5) misoperation category; and (6) cause(s) of misoperation.35 For 2014, the protection system misoperations database contains information on approximately 2,000 misoperation events.36

    35Id. at 13-14; see also NERC, Protection System Misoperations Home Page, http://www.nerc.com/pa/RAPA/ri/Pages/ProtectionSystemMisoperations.aspx.

    36 State of Reliability 2015 at 47.

    14. Protection system misoperations have exacerbated the severity of most cascading power outages, having played a significant role in the August 14, 2003 Northeast blackout, for example.37 NERC uses protection system misoperations data to assess protection system performance and trends in protection system performance that may negatively impact reliability.38 NERC publishes aggregate misoperation information for each NERC Region in annual public state of reliability reports, with the underlying data being accorded confidential treatment.39

    37See Request for Data or Information Protection System Misoperation Data Collection at 5.

    38See id. at 14.

    39See, e.g., State of Reliability 2015 at 45-48.

    C. NOPR

    15. On September 17, 2015, the Commission issued a Notice of Proposed Rulemaking (NOPR) proposing to amend the Commission's regulations to require NERC to provide the Commission, and Commission staff, with access, on a non-public and ongoing basis, to the TADS, GADS, and protection system misoperations databases regarding U.S. facilities.40 In response to the NOPR, the Commission received 13 sets of comments.41 We address below the issues raised in the NOPR and comments.

    40Availability of Certain North American Electric Reliability Corporation Databases to the Commission, Notice of Proposed Rulemaking, 80 FR 58,405 (Sept. 29, 2015), 152 FERC ¶ 61,208 (2015) (NOPR).

    41 The Appendix to this Final Rule lists the entities that filed comments in response to the NOPR.

    II. Discussion

    16. Pursuant to section 215 of the FPA, we amend the Commission's regulations to require NERC to provide the Commission, and Commission staff, with access (i.e., view and download data), on an ongoing and non-public basis, to the TADS, GADS, and protection system misoperations databases. As proposed in the NOPR and clarified in the language of the new regulation, the Commission's access will be limited to data regarding U.S. facilities. In addition, as discussed further below, the Commission determines that NERC is not required to provide the Commission with access to data provided to NERC on a voluntary basis.

    17. As discussed below, the Commission believes that access to these three NERC databases is necessary to carry out the Commission's obligations under section 215 of the FPA. Further, as discussed in Section II.B.1 below, we believe that if access is limited to data mandatorily provided, Commission access to the TADS, GADS, and protection system misoperations databases will not result in a reduction in the level or quality of information that users, owners and operators of the Bulk-Power System share with NERC and the Regional Entities, and will not otherwise result in a so-called chilling effect on NERC's data-gathering efforts. We also discuss the following matters below: (A) Authority to require and need for Commission access to NERC databases; (B) information voluntarily provided; (C) confidential information; (D) NERC's alternative proposal; and (E) information collection.

    A. Authority To Require and Need for Commission Access to NERC Databases NOPR

    18. In the NOPR, the Commission stated that its proposed access to the TADS, GADS and protection system misoperations databases regarding U.S. facilities was “necessary to carry out the Commission's statutory authority: (1) To evaluate the need to direct new or modified Reliability Standards under section 215(d) of the FPA; and (2) to better understand NERC's periodic assessments and reports . . . regarding the reliability and adequacy of the Bulk-Power System under section 215(g) of the FPA.” 42 The Commission first explained that access to the databases would inform it “more quickly, directly and comprehensively about reliability trends or reliability gaps that might require the Commission to direct the ERO to develop new or modified Reliability Standards,” responsibility which falls not only to the ERO but also to the Commission under FPA section 215(d).43 The Commission noted that each of the three databases could provide important information regarding the need for new or modified Reliability Standards and for assessing Bulk-Power System reliability, as NERC had itself recognized when justifying the need for mandatory reporting (to NERC) of TADS, GADS, and protection system misoperation data.44

    42 NOPR, 152 FERC ¶ 61,208 at P 17.

    43Id. P 18.

    44See id. P 19 (quoting NERC's statements that “TADS data is intended to provide a basis for standards” and that protection system misoperations data is used to “[i]dentify trends in Protection System performance that negatively impact reliability.”)

    19. Second, the Commission explained in the NOPR that access to the data would “assist the Commission with its understanding of the reliability and adequacy assessments periodically submitted by NERC pursuant to section 215(g) of the FPA.” 45 The Commission further stated that having direct access to the underlying data used in aggregate form in NERC's reliability reports would “help[ ] the Commission to monitor causes of outages and detect emerging reliability issues.” 46

    45Id. P 20.

    46Id.

    Comments

    20. Four commenters generally support, or do not oppose, the Commission's proposal to access NERC's TADS, GADS, and protection system misoperations databases.47 Resilient Societies supports the Commission's proposed access to the NERC data “because NERC has not performed, or not disclosed data analysis when the results might not be consistent with the interest of NERC's industry members in avoiding or minimizing regulation.” 48

    47 WIRAB supports the NOPR as a whole. Resilient Societies, David Bardin, and SGS support greater access to NERC data, including access by the Commission, but Resilient Societies and David Bardin question the need to keep the data non-public, as discussed further in Section II.B.2, infra.

    48 Resilient Societies Comments at 2.

    21. All other commenters, including NERC,49 the Trade Associations, and the Public Power Associations oppose the Commission's proposed regulation requiring NERC to provide the Commission access to NERC's TADS, GADS, and protection system misoperations databases.

    49 While NERC recognizes the Commission's objective of obtaining data needed to fulfill its oversight responsibilities, NERC asks the Commission to adopt its alternative proposal, discussed below in Section II.B.3, under which NERC would provide the Commission with access to anonymized TADS, GADS, and protection system misoperations data. The Northwest Public Power Association (NWPPA) and Western Electricity Coordinating Council (WECC) filed comments in support of NERC's comments, including NERC's proposed alternative to provide access to anonymized data.

    22. The Trade Associations maintain that the Commission does not need access to these NERC databases to fulfill its obligations under FPA section 215, and that the Commission has multiple processes it can use to achieve its stated goals, including events analysis, reviewing patterns and trends in compliance and enforcement, coordination with NERC's technical committees, evaluating NERC's periodic and special reliability assessments, periodic review of individual standards, and discussions on emerging issues at technical conferences and workshops.50 The Trade Associations argue that these processes are sufficient to allow the Commission to obtain information needed to perform its functions “without accessing the highly-sensitive, facility-specific raw data contained in the databases.” 51

    50See Trade Associations Comments at 5, 6-11.

    51Id. at 6-7.

    The Trade Associations assert that “access to the raw data contained in the databases without NERC and industry analysis will not directly achieve the Commission's goals of identifying gaps in Reliability Standards and in understanding NERC assessments because in and of itself the raw data, without context or NERC technical analysis, does not shed light on these matters.” 52 While the Trade Associations thus object to any new requirement that NERC provide access to these databases, the Trade Associations ask that, if the Commission decides to move forward with such a requirement, the Commission issue a modified proposal to better explain “how direct access to the raw data collected by NERC in the GADS, TADS, and misoperations databases will support [the Commission's] needs.” 53

    52Id. at 12-13. See also NERC Comments at 21-22 (stating that the proposed regulation “is not tailored to support the Commission's objective under the NOPR, because it will not enable the Commission to place relevant data in context for purposes of completing meaningful analyses of the BPS” and that “the Commission would not be able to place relevant data in context to derive useful information, which may result in incorrect or inappropriate conclusions” without engaging in a collaborative process with NERC.

    53 Trade Associations Comments at 12.

    Further, the Trade Associations and several other commenters argue that the NOPR proposal is not “consistent” with the division of responsibilities between the ERO and the Commission set forth in FPA section 215.54 The Trade Associations assert that “[t]he assessment of reliability data in these databases is squarely within the role of the ERO, which `conduct[s] periodic assessments of the reliability and adequacy of the bulk-power system' ” and that “[t]here is no equivalent role for the Commission.” 55 Similarly, the Public Power Associations contend that the NOPR proposal would impinge on the ERO's statutory authority to develop Reliability Standards, and that the FPA contemplates that the ERO should be the “principal agent for standards development and the assessment of grid reliability.” 56

    54See e.g., Public Power Associations Comments at 2 (“the NOPR does not appear tailored to achieving that goal in a manner consistent with [FPA section 215's] statutory scheme.”).

    55 Trade Associations Comments at 16 (citing 16 U.S.C. 824o(g), and quoting Commissioner LaFleur's concurring statement to the NOPR noting that “it is important that we recognize the distinction between (the Commission's) oversight role and NERC's primary responsibility to monitor reliability issues and to propose standards to address them.”)

    56 Public Power Associations Comments at 7; see also NERC Comments at 16-20.

    23. The Public Power Associations point out that the Commission is to give due weight to the technical expertise of the ERO under FPA section 215(d)(2) and that FPA section 215(g) does not give the Commission an oversight role in performing periodic assessments of the reliability and adequacy of the Bulk-Power System, and express a general concern that the NOPR “suggests a shift in the balance of responsibilities between NERC and FERC contemplated by FPA section 215.” 57 Similarly, NERC maintains that the proposed rule would “operate in tension” with section 215 of the FPA and would “chill industry collaboration with the ERO and undermine the regulatory framework for reliability.” 58

    57 Public Power Associations Comments at 7-8. The Public Power Associations accordingly “urge the Commission to be mindful of the inefficiencies and potential confusion that would result from a situation in which NERC and FERC perform the same analytical roles.” Id. at 2.

    58 NERC Comments at 6.

    Commission Determination

    24. We find that the Commission's authority to require access to NERC's TADS, GADS, and protection system databases is fully consistent with FPA section 215, and that the NOPR adequately explained why access to that data is necessary for the Commission to carry out its obligations under FPA section 215.59

    59See NOPR, 152 FERC ¶ 61,208 at PP 17-20.

    25. First, we disagree with arguments that Commission access to these databases reflects an unwarranted shift in the balance of responsibilities between NERC and the Commission under section 215 of the FPA.60 To the contrary, we believe that NERC and other industry commenters overstate the impact of the NOPR proposal, which recognized and acknowledged the respective roles of the Commission and NERC under section 215 of the FPA.61 NERC, as the ERO, is responsible for developing reliability standards to address reliability issues, whether identified by NERC, its stakeholders, or the Commission; the Commission then reviews and determines whether to approve those standards. Nothing in the NOPR or this Final Rule proposes to change that structure.

    60E.g., Public Power Associations Comments at 6-9; Trade Associations Comments at 15-17.

    61 NOPR, 152 FERC ¶ 61,208 at P 18.

    26. Rather, as explained in the NOPR and this Final Rule, the Commission has determined that access to these databases will aid the Commission's implementation of its statutory authority, under section 215(d)(5) of the FPA, to determine whether to require NERC to develop new or modified reliability standards. As with prior instances in which the Commission acted pursuant to this authority,62 NERC and its stakeholder process—not the Commission—would be responsible for the development of new or modified standards directed by the Commission. Therefore, Commission access to these databases does not supplant the role that NERC and its stakeholder process have in the standards development process.

    62See, e.g., Reliability Standards for Physical Security Measures, 146 FERC ¶ 61,166 (2014); Reliability Standards for Geomagnetic Disturbances, 143 FERC ¶ 61,147 (2013).

    27. We also disagree with assertions that the requirement in section 215(d)(2) of the FPA that the Commission give “due weight to the technical expertise of the [ERO] with respect to the content of a proposed standard or modification to a reliability standard” 63 suggests that the Commission must limit itself to an oversight role in the standards development process, and should broadly defer to NERC and its stakeholders on matters related to standards development.64 As a threshold matter, the Commission did not rely on FPA section 215(d)(2), which addresses the Commission's authority to approve proposed Reliability Standards, as its statutory basis for proposing the new regulation. Instead the Commission relied on FPA section 215(d)(5), which vests the Commission with the authority, “upon its own motion or upon complaint, [to] order the [ERO] to submit to the Commission a proposed reliability standard or a modification to a reliability standard that addresses a specific matter if the Commission considers such a new or modified reliability standard appropriate to carry out this section.” 65 Notably, while section 215(d)(2) affords “due weight” to the technical expertise of the ERO concerning the content of the standard, neither FPA section 215(d)(2) nor FPA section 215(d)(5) requires the Commission to afford “due weight” to the ERO's selection of which specific matters warrant a Reliability Standard. To the contrary, section 215(d)(5) explicitly authorizes the Commission to direct the ERO to develop new or modified Reliability Standards to address a specific matter if the Commission deems it “appropriate” to carry out section 215 of the FPA.66 We therefore see no inconsistency between affording “due weight” under section 215(d)(2) and ensuring the Commission's ability to effectively implement its authority under section 215(d)(5).

    63 16 U.S.C. 824o(d)(2).

    64E.g., Public Power Associations Comments at 7-8.

    65Id. 824o(d)(5).

    66 We note that a proposed Reliability Standard submitted for Commission approval in response to a directive pursuant to section 215(d)(5) would be reviewed by the Commission pursuant to section 215(d)(2) of the FPA. Therefore, the ERO's technical expertise with respect to the content of the proposed standard would be afforded due weight.

    28. Moreover, contrary to several commenters' assertions, nothing in FPA section 215 states or suggests that the Commission's authority to direct the development or amendment of Reliability Standards is secondary to or otherwise “duplicative” of the ERO's authority to develop Reliability Standards on its own. NERC's authority to develop Reliability Standards under FPA section 215(d)(2) and the Commission's authority to direct NERC to develop Reliability Standards under FPA section 215(d)(5) are independent. Accordingly, the NOPR proposal does not represent a “shift” in responsibilities between the Commission and the ERO, and is instead part of the necessary input required by the Commission to carry out its statutory obligations to determine whether to direct the development or modification of a Reliability Standard under FPA section 215(d)(5).67

    67 As stated in the NOPR and as previously explained in Order No. 672, access to relevant information, such as the information to be obtained through the new regulation, allows the Commission to fulfill its statutory obligations under section 215 of the FPA. NOPR, 152 FERC ¶ 61,208 at P 16 (citing Order No. 672, FERC Stats. & Regs. ¶ 31,204, at P 114).

    29. With respect to how the Commission would use the data from the TADS, GADS, and protection system misoperations databases, including the Trade Associations' and others commenters' contention that access to raw data would not be useful in achieving the Commission's objectives, the Commission did not indicate in the NOPR that it would rely exclusively on such data in assessing the need for NERC to develop new or modified Reliability Standards or to better understand NERC's reliability assessments. Instead, the Commission has identified data that would assist in carrying out FPA section 215, and the Commission intends to analyze data from the NERC databases in addition to data from other existing resources (e.g., Commission, NERC, and industry resources), including disturbance reporting data and event analysis information, to facilitate the Commission's oversight of Bulk-Power System reliability. With respect to the Trade Associations' position that the Commission has other mechanisms that are adequate to fulfill its oversight obligations, we do not agree that the Commission's authority is limited to those mechanisms, particularly where we find, as here, that access to the additional information included in the three NERC databases is needed to meet our statutory obligations under FPA section 215.

    30. We recognize, however, that we will be able to better evaluate the usefulness of the data in question as the Commission gains experience analyzing those data. Accordingly, we will continue to assess our need for access to these NERC databases after we gain adequate experience with this data following implementation of the new regulation.

    B. Access to Voluntarily-Provided and Confidential Information

    31. NERC and a number of other commenters raise concerns about the impact of the Commission's access to the TADS, GADS, and protection system misoperations databases on the overall quality of data shared with NERC, asserting that such access may negatively impact the industry's provision of voluntary data to NERC, and that it otherwise raises confidentiality concerns that may not be easily addressed. The Trade Associations and other commenters argue that these concerns should preclude the Commission's moving forward with any requirement to provide Commission access to the raw data in the TADS, GADS, and protection system misoperation databases, while NERC and other commenters suggest an alternative approach (discussed in Section II.B.3, below) that would provide the Commission with limited access to the databases while attempting to more fully protect confidential or sensitive information provided to NERC by users, owners, and operators of the Bulk-Power System.

    Information Voluntarily Provided NOPR

    32. In the NOPR, the Commission proposed to amend its regulations to require NERC to provide the Commission with access to the TADS, GADS and protection system misoperations databases. The Commission explained that these databases are populated with data collected through mandatory NERC data requests or Reliability Standards and that the access proposed in the NOPR would be limited to U.S. facilities.68 While the NOPR did not explicitly address whether the Commission's access to information in these databases should exclude data voluntarily provided to NERC (other than information regarding non-U.S. facilities), the Commission's description of each database focused on the data that is required to be provided to NERC and the justifications NERC has offered in making reporting of that data mandatory.69

    68See NOPR, 152 FERC ¶ 61,208 at PP 5-14, 15.

    69Id. PP 5-14, 19.

    Comments

    33. NERC contends that the NOPR proposal could have a negative impact on the quality and level of data voluntarily submitted by industry to NERC (i.e., data that is not currently required to be submitted to NERC under mandatory NERC data requests or Reliability Standards). NERC states that while the NOPR implies that it affects only data submitted pursuant to mandatory data reporting obligations, NERC is concerned that the proposed rule instead implicates both mandatory and voluntary data. Specifically, NERC states that TADS includes data voluntarily shared “by non-U.S. Transmission Owners and data voluntarily shared prior to 2015 on Bulk Electric System transmission elements under 200 kV.” 70 NERC also states that GADS includes data “voluntarily provided from generating units with less than 20 MW of capacity, data voluntarily provided prior to 2013 from generating units with less than 50 MW of capacity, and data being voluntarily shared for certain GADS event record fields.” 71 NERC further states that the protection system misoperations database includes “voluntary data currently shared by non-U.S. entities and data shared with Regional Entities prior to EPAct 2005.” 72 Ultimately, NERC is concerned that the proposed rule requiring Commission access to these databases could “return both NERC and the Commission to a state where industry only shares reliability-related data in response to mandatory data requests that provide a narrow window into the web of complex information necessary to ensure reliability.” 73

    70 NERC Comments at 8-9.

    71Id. at 9.

    72Id.

    73 NERC Comments at 33.

    34. The Public Power Associations and CEA agree with NERC's concerns and add that, if the Commission chooses to adopt the NOPR proposal, the Final Rule should clarify that the Commission will only use the accessed data for the purposes stated in the NOPR and not for compliance or enforcement purposes.74 CEA also requests that, if the Commission moves forward with its proposed regulation, it should modify the language of the regulation to clarify that the Commission's access to data is limited to data regarding U.S. facilities.

    74 Public Power Associations Comments at 11; CEA Comments at 10-11 (stating that “the establishment and administration of [the TADS, GADS, and protection system misoperations] databases have not been effectuated with FERC or other applicable governmental authorities in mind.”)

    35. The Trade Associations also agree with NERC's concerns and, more broadly, argue that the NOPR proposal could “chill” industry information-sharing with NERC generally. The Trade Associations state that this chilling effect will be “more profound” if the Commission should, in the future, request access to other NERC databases that rely on voluntary information-sharing (such as NERC's Electricity Information Sharing and Analysis Center), or if the databases “are used for non-reliability purposes, such as economic policy and enforcement purposes.” 75

    75 Trade Associations Comments at 26.

    Commission Determination

    36. In the NOPR, the Commission expressly proposed to exclude from the database access requirement information concerning non-U.S. facilities, and we will maintain that exclusion in the regulation as adopted. The Commission agrees with CEA that this exclusion can be clarified through a modification to the language of the proposed regulation, and we, accordingly, add a new sentence to the end of the regulation to clarify that Commission access will be limited to data regarding U.S. facilities.

    37. In addition, while the NOPR did not explicitly state that the Commission's access to data would be limited to data provided to NERC as part of a mandatory data request or other NERC requirement, the Commission believes that it can achieve its objectives as stated in the NOPR with access to mandatorily-provided data only. Adopting this approach should mitigate NERC's and other commenters' concerns regarding the impact of the proposed regulation on the level and quality of voluntary information-sharing with NERC and the Regional Entities. Because the Commission will only be accessing data that entities are required to provide to NERC, there should be no impact on an entity's willingness to share additional, voluntary information.

    38. While NERC maintains that entities may be hesitant to provide voluntary information to NERC or the Regional Entities because the Commission could seek to access that information in the future, we do not find these arguments to be persuasive, particularly in light of the Commission's decision to exclude voluntarily-provided information from the scope of the Final Rule. Moreover, we find that these concerns do not override our need for the data contained in NERC's TADS, GADS, and protection system misoperation databases.

    39. With respect to requests to limit our use of the data accessed, the Commission's intent in seeking access to the data is as stated in the NOPR (i.e., to assess the potential need for new or modified Reliability Standards and to better understand NERC's periodic reliability and adequacy assessments). We believe the data will be most useful for evaluating overall reliability trends and identifying specific reliability concerns. For example, the data could provide insight into chronic or recurring system deficiencies, provide a basis for comparison of the reliability benefits of different kinds of equipment or system configurations, or be used to assess the effectiveness of reliability efforts across NERC, Regional Entities and industry. However, the Commission is not precluded from using the accessed data for other statutory purposes.

    1. Confidentiality NOPR

    40. In the NOPR, the Commission recognized that its proposal to access data in the TADS, GADS, and protection system misoperations databases “might raise confidentiality issues,” and stated that if the collected data include confidential information it would “take appropriate steps, as provided for in our governing statutes and regulations, in handling such information.” 76

    76 NOPR, 152 FERC ¶ 61,208 at P 22.

    Comments

    41. NERC and industry commenters identify maintaining the confidentiality of TADS, GADS, and protection system misoperations data accessed by the Commission as a major concern with the NOPR proposal. NERC contends that treating such data as confidential is appropriate because “the detailed data implicated by the NOPR could be misused to target vulnerabilities in the [Bulk-Power System].” 77 NERC maintains that while “data implicated by the NOPR would normally be eligible for exemption from [the Freedom of Information Act (FOIA)] disclosure as commercial information or sensitive information in light of security interests, and protected as Confidential Information or [Critical Energy Infrastructure Information (CEII)] under Commission regulation, eligibility for exemption from disclosure under FOIA only partially mitigates risk to confidentiality,” in part because the Commission has discretion whether to invoke such an exemption.78 NERC also asserts that the Commission has disclosed information in the past that was eligible for exemption from FOIA, including information treated as CEII.79

    77 NERC Comments at 10.

    78Id. at 27-28.

    79Id. at 28.

    42. Similarly, the Trade Associations maintain that the regulation, if adopted, “would create a heightened risk of improper disclosure of the GADS, TADS, and misoperations information, risking harm to the Commission's jurisdictional markets and the security of the nation's bulk-power system.” 80 The Trade Associations describe the potential harm that could result from disclosure of the TADS, GADS, and misoperations data, and maintain that the heightened risk of disclosure stems not only from the potential for release through a FOIA request, but also from the unintentional release of data through security breaches.81 As examples, the Trade Associations state that data accessed by the Commission could be accidentally disseminated through “misplaced hard drives or laptops, inadvertently directed emails, or incorrectly granted information access,” and assert that “the risk of information loss also increases with the number of individuals and organizations accessing and holding the data.” 82

    80 Trade Associations Comments at 18-19.

    81Id. at 20-21.

    82Id. at 21.

    43. Resilient Societies, by contrast, objects to the NOPR's proposal to preserve the confidentiality of the accessed data, raising a concern that the Commission might be restricted “from analyzing the NERC data and then using conclusions developed thereby to support rulemaking or other public policy actions.” 83 Resilient Societies accordingly requests that the Commission adopt the NOPR with “appropriate additional provisions to allow public disclosure of modeling parameters and other conclusions developed from the TADS and GADS data.” 84

    83 Resilient Societies Comments at 2.

    84Id. at 3.

    Commission Determination

    44. It is clear from the record that maintaining the confidentiality of data included in the TADS, GADS, and protection system operations databases is a significant concern to NERC and the entities that provide information to these databases. The Commission recognizes that information contained in the TADS, GADS, and protection system misoperation databases may be sensitive, and that such information may qualify as CEII under the Commission's regulations. As discussed below, and to address these concerns, we will defer the effectiveness of this Final Rule until the Commission issues a final rule adopting regulations to implement its recently-expanded authority to protect against the disclosure of “critical electric infrastructure information.”

    45. As stated in the NOPR, the Commission commits that we will take appropriate steps in handling such information, in accordance with our governing statutes and regulations. Subsequent to the issuance of the NOPR, the Commission's authority to safeguard sensitive information has been enhanced through the recent enactment of FPA section 215A.85 FPA section 215A creates a new statutory FOIA exemption for information designated “critical electric infrastructure information” by the Commission or the Department of Energy.86 Concurrently with the issuance of this Final Rule, the Commission is issuing a Notice of Proposed Rulemaking proposing to amend the Commission's regulations to implement the provisions of the FAST Act pertaining to the designation, protection and sharing of critical electric infrastructure information, and proposing to amend its existing regulations pertaining to CEII.87

    85See Fixing America's Surface Transportation (FAST Act), Public Law 114-94, 61003, 129 Stat. 1312 (2015).

    86 FPA section 215A(a)(3) defines critical electric infrastructure information as “information related to critical electric infrastructure, or proposed critical electrical infrastructure, generated by or provided to the Commission or other Federal agency, other than classified national security information, that is designated as critical electric infrastructure by the Commission or the Secretary pursuant to subsection (d). Such term includes information that qualifies as critical energy infrastructure information under the Commission's regulations.” Id.

    87Regulations Implementing FAST Act Section 61003—Critical Electric Infrastructure Security and Amending Critical Energy Infrastructure Information, 155 FERC ¶ 61,278 (2016).

    46. We determine that the Commission's expanded authority to safeguard sensitive information adequately addresses the concerns raised in the comments regarding confidentiality. By deferring Commission access to the databases until issuance of a final rule implementing the new “critical electric infrastructure information” protection, we will ensure that the Commission has the full authority of that law at its disposal to protect against the improper disclosure of “critical electric infrastructure information” contained in the databases.88 We also believe that this proposal strikes an appropriate balance between the Commission's need to access potentially sensitive information, and the need to protect that information against improper disclosure.89

    88 In deferring the effectiveness of this Final Rule, the Commission is not making a determination that any particular information in the databases is, in fact, “critical electric infrastructure information.”

    89 During the intervening period between issuance of this Final Rule and the Final Rule becoming effective, Commission staff will work with NERC to address any technical, procedural, or confidentiality issues to ensure that Commission staff can promptly access the databases upon the Final Rule becoming effective.

    47. Moreover, whatever potential risks might remain regarding the dissemination of GADS, TADS, and protection system misoperations database data do not, in our view, outweigh the need for Commission access to carry out our statutory responsibilities under FPA section 215. Since passage of the EPAct in 2005, the Commission has generally had to rely on aggregated and summarized data in its assessments of the state of reliability and of the efficacy of current Reliability Standards. Based on that experience, the Commission has determined that such aggregated and summarized data do not allow the Commission to perform the reliability analyses necessary to accomplish the purposes of this rule.

    2. NERC Alternative Proposal To Provide Anonymized Data NOPR

    48. Under the Commission's proposed regulation, NERC would be required to provide the Commission access to the mandatory TADS, GADS, and protection system misoperations databases regarding U.S. facilities, on a non-public and on-going basis as soon as the proposed regulation becomes effective.

    Comments

    49. NERC proposes a two-phase alternative approach to avoid a number of the concerns NERC and the industry have with the NOPR proposal. In the first phase, NERC would provide anonymized data to the Commission “within 90 days of the Commission's order on the NOPR.” 90 In the second phase, “NERC staff would work collaboratively with Commission staff through an Information Sharing Working Group to develop NERC-managed tools to provide Commission staff access to anonymized versions of TADS, GADS, and protection system misoperations databases.” 91 NERC proposes that the Commission access GADS data through NERC's existing “pc-GAR” product, which “provides users with access to anonymized reliability information from the over 5,000 generating units reporting under GADS, and allows users to select from hundreds of data combinations,” and provides users the ability to generate reports based on region, generator type, and fuel type.92 NERC proposes to give the Commission access to pc-GAR and to develop “similar tools” for TADS and protection system misoperations data.93

    90 NERC Comments at 4.

    91Id. at 4-5.

    92Id. at 11. The pc-GAR is a family of products that provides the automated personal computer (pc-) version of NERC's Generating Availability Report (GAR). See http://www.nerc.com/pa/RAPA/gads/Pages/pc-GAR.aspx.

    93Id.

    50. Several industry commenters support NERC's alternative approach, including CEA, KCP&L, NWPPA, and WECC.94 While the Public Power Associations also support NERC's alternative proposal, they recommend that the Commission adopt NERC's alternative approach as an intermediate step, and then revisit the effectiveness of NERC's approach after a reasonable period for testing the efficacy of using the anonymized data (e.g., after one or two years).

    94See, e.g., CEA Comments at 15, WECC Comments at 2.

    51. Resilient Societies opposes NERC's proposed alternative approach because it contends that “[o]nly by knowing the location of TADS and GADS events, and by cross-referencing to network configuration, will analysts at FERC be able to fully understand reasons for equipment failure, system misoperations, or grid outages.” 95

    95 Resilient Societies Comments at 2.

    Commission Determination

    52. We are not persuaded that the anonymized data, in the form offered by NERC, would provide the Commission with sufficiently useable information to achieve its objectives as stated in the NOPR. Were NERC to fully anonymize the databases, it would have to mask not only fields that directly identify entities (i.e., entity name and/or NERC Compliance Registry (NCR) number), but would also have to mask every field that could contain information which could allow identification of a particular entity (e.g., where the location or characteristics of a particular facility could lead to identification of the reporting entity). While we agree that the “attributable” information in these data fields is sensitive and could be entitled to non-public treatment by the Commission (as discussed above in Section II.B.2), we believe that masking all fields which may contain such data before providing it to the Commission would severely constrain the value of the Commission's access to the databases. This masking would likely preclude Commission access to information such as the affected facility names and locations, affected equipment names, which generation or transmission facilities were tripped as a result of a misoperation, the event description, and the corrective actions taken following a misoperation.

    53. The masking of such information would limit the Commission's ability, inter alia, to identify reliability problems in specific geographic areas, or for specific failure modes or types of equipment. The accessible information would only allow the Commission to achieve a broad and generalized understanding of Bulk-Power System risks, and not the more detailed and meaningful analysis that the Commission seeks.

    54. In addition, masking of information used to locate or identify outages of specific transmission or generation facilities would limit the Commission's ability to identify affected regional or sub-regional vulnerabilities, and accordingly limit its ability to make recommendations regarding the efficacy of existing regional Reliability Standards or the need for new or modified regional Reliability Standards. This aggregation or masking of information would also limit the Commission's ability to understand the causes of cascading failures where multiple outages occur in sequence and in close proximity or match the databases with other sources of information such as disturbance reporting data currently provided by NERC. For all of these reasons, we find that anonymized data taken from the databases would not allow the Commission to achieve the objectives set out in the NOPR. Accordingly, we find NERC's proposal not to be a viable alternative to the NOPR proposal.

    III. Information Collection Statement

    55. The following collection of information contained in this Final Rule is subject to review by the Office of Management and Budget (OMB) under section 3507(d) of the Paperwork Reduction Act of 1995 (PRA).96 OMB's regulations require approval of certain information collection requirements imposed by agency rules.97 Upon approval of a collection of information, OMB will assign an OMB control number and expiration date. Respondents subject to the filing requirements of this rule will not be penalized for failing to respond to this collection of information unless the collection of information displays a valid OMB control number.

    96 44 U.S.C. 3507(d).

    97 5 CFR 1320.11.

    NOPR

    56. In the NOPR, the Commission explained that the proposed regulation would make TADS, GADS, and protection system misoperations data regarding U.S. facilities, currently collected by NERC, available to the Commission and its staff on a non-public and ongoing basis. The Commission stated that the new regulation would not require NERC to collect new information, compile information into any kind of report, or reformulate its raw data. The Commission also stated its belief that it could be relatively straightforward for NERC to provide the Commission, and Commission staff, with access to TADS, GADS, and protection systems misoperations data, and noted that various entities currently have access to these data via an existing web interface. Accordingly, the Commission estimated that the one-time burden associated with compliance with the proposed rule would be de minimis, and would be limited to NERC reviewing the Commission's proposed regulation and providing the Commission and its staff with access to the existing TADS, GADS, and protection system misoperations databases.

    57. The Commission solicited comments on the need for the required information, whether the information will have practical utility, the accuracy of the burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected or retained, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques. Specifically, the Commission asked that any revised burden or cost estimates submitted by commenters be supported by sufficient detail to understand how the estimates are generated.

    Comments

    58. The Trade Associations argue that the Commission's burden estimate as stated in the NOPR is deficient because it overlooks the burden on users, owner, and operators of the Bulk-Power System of providing the underlying data to NERC.98 The Trade Associations maintain that by ignoring the burdens imposed as a result of NERC's underlying data collection, the Commission is effectively avoiding scrutiny by OMB. In addition, the Trade Associations assert that the information-collecting activities associated with the new regulation are not covered under OMB's FERC-725 collection authorization because they do not relate to operational information collected from Regional Entities. Accordingly, the Trade Associations argue that a new OMB information collection authorization is required.

    98 Trade Associations Comments at 17.

    Commission Determination

    59. For the reasons discussed below, the Commission adopts the Information Collection Statement included in the NOPR (i.e., the Commission estimates that there will be a de minimis burden associated with the information collection requirements under the new regulation). Essentially, the only burden the new regulation imposes will be on NERC, and the only action required is for NERC to provide access to its existing TADS, GADS, and protection misoperation databases. While NERC may have to develop limited screens to ensure that information related to non-U.S. facilities or information voluntarily provided has been excluded, we understand that NERC currently has the capability to provide access to certain data within its databases while screening other data or data fields (similar to the access NERC provides using its pc-GAR product).

    60. With respect to the Trade Associations' assertion that the NOPR's Information Collection analysis overlooks the burden imposed on registered entities by NERC's underlying reporting requirements, we do not agree that the Paperwork Reduction Act requires an examination of underlying information collection burdens that exist independent of the proposed regulation. In this case, the burden on the entities required to report data on U.S. facilities to NERC is already in place and remains mandatory and unchanged regardless of whether the Commission adopts the regulation or not.

    61. Furthermore, contrary to the Trade Associations' assertions, OMB has reviewed the information collection burden associated with the underlying obligation on users, owners, and operators of the Bulk-Power System to report misoperations data to NERC. In approving earlier versions of the Reliability Standard that first imposed such a reporting obligation (i.e., PRC-004), the Commission took into account the estimated burden imposed on registered entities to report the misoperations data to NERC.99 The underlying misoperations reporting obligation was subsequently removed from Reliability Standard PRC-004-2.1 and moved into a separate data request pursuant to Section 1600 of NERC's Rules of Procedure. However, the underlying reporting burden to NERC was still reflected in the OMB burden estimate,100 and is currently included in the FERC-725 information collection (OMB Control No. 1902-0255, recently approved by OMB on February 26, 2016).

    99See NERC Reliability Standard PRC-004-2a (unchanged in Order No. 785 in RM12-16) and for PRC-004-2.1a (which replaced Reliability Standard PRC-004-2a), covered under FERC-725A (OMB Control No. 1902-0244); Reliability Standard PRC-004-2.1(i)a in Docket No. RM12-16, covered by FERC-725M (OMB Control No. 1902-0263); Reliability Standard PRC-004-3 (in Docket No. RD14-14), covered by FERC-725G1 (OMB Control No. 1902-0284); and Reliability Standard PRC-004-4 (in Docket No. RD15-3) (submitted to OMB for information only).

    100See North American Electric Reliability Corp., 151 FERC ¶ 61,129, at P 22 (2015).

    62. Finally, the Trade Associations are incorrect with respect to the scope of existing FERC-725 (Certification of Electric Reliability Organization; Procedures for Electric Reliability Standards), which covers the ERO's obligation to provide data to the Commission. FERC-725 includes information required by the Commission to implement the statutory provisions of section 215 of the FPA, and includes the burden, reporting and recordkeeping requirements associated with: (a) Self Assessment and ERO Application, (b) Reliability Assessments, (c) Reliability Standards Development, (d) Reliability Compliance, (e) Stakeholder Survey, and (f) Other Reporting.

    63. As a result, this Final Rule will be submitted to OMB for review and approval as a “no material or nonsubstantive change to a currently approved collection.”

    Title: FERC-725, Certification of Electric Reliability Organization; Procedures for Electric Reliability Standards.

    Action: Revision of currently approved collection of information.

    OMB Control No.: 1902-0225.

    Respondents for this Rulemaking: Electric Reliability Organization.

    Frequency of Information: Initial implementation by the ERO to provide Commission access to TADS, GADS, and misoperations databases.

    Internal review: The Commission has reviewed the proposed regulation and has determined that the proposed regulation is necessary to ensure the reliability and integrity of the nation's Bulk-Power System.

    64. Interested persons may obtain information on the reporting requirements by contacting the Federal Energy Regulatory Commission, Office of the Executive Director, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, email: [email protected], phone: (202) 502-8663, fax: (202) 273-0873].

    65. Comments concerning the information collections approved in this Final Rule and the associated burden estimates, should be sent to the Commission in this docket and may also be sent to the Office of Management and Budget, Office of Information and Regulatory Affairs [Attention: Desk Officer for the Federal Energy Regulatory Commission, phone: (202) 395-0710, fax: (202) 395-7285]. For security reasons, comments should be sent by email to OMB at the following email address: [email protected] Please reference the docket number of this Final Rule (Docket No. RM15-25-000) and OMB Control No. 1902-0225 in your submission.

    IV. Environmental Analysis

    66. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.101 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment. Included in the exclusion are rules that are clarifying, corrective, or procedural or that do not substantially change the effect of the regulations being amended.102 The actions here fall within this categorical exclusion in the Commission's regulations.

    101Regulations Implementing the National Environmental Policy Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. ¶ 30,783 (1987).

    102 18 CFR 380.4(a)(2)(ii).

    V. Regulatory Flexibility Act

    67. The Regulatory Flexibility Act of 1980 (RFA) 103 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. The Small Business Administration (SBA) revised its size standard (effective January 22, 2014) for electric utilities from a standard based on megawatt hours to a standard based on the number of employees, including affiliates.104

    103 5 U.S.C. 601-612.

    104 SBA Final Rule on “Small Business Size Standards: Utilities,” 78 FR 77,343 (Dec. 23, 2013).

    68. The Commission is amending its regulations to require only the ERO (i.e., NERC) to provide the Commission, and Commission staff, with access, on a non-public and ongoing basis, to the existing TADS, GADS, and protections system misoperations databases. As discussed above, we estimate that the costs to the ERO associated with this Final Rule will be de minimis. Accordingly, the Commission certifies that the new regulation will not have a significant economic impact on a substantial number of small entities, and no regulatory flexibility analysis is required.

    VI. Document Availability

    69. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426.

    70. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

    71. User assistance is available for eLibrary and the Commission Web site during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at [email protected]

    VII. Effective Date and Congressional Notification

    72. These regulations are effective July 12, 2016. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this rule is not a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996. The Commission will submit the Final Rule to both houses of Congress and to the General Accountability Office.

    By the Commission.

    Issued: June 16, 2016. Kimberly D. Bose, Secretary.

    In consideration of the foregoing, the Commission amends Chapter I, Title 18, part 39 of the Code of Federal Regulations, as follows:

    PART 39—RULES CONCERNING CERTIFICATION OF THE ELECTRIC RELIABILITY ORGANIZATION; AND PROCEDURES FOR THE ESTABLISHMENT, APPROVAL, AND ENFORCEMENT OF ELECTRIC RELIABILITY STANDARDS 1. The authority citation for part 39 continues to read as follows: Authority:

    16 U.S.C. 824o.

    2. Amend § 39.11 to add paragraph (c) as follows:
    § 39.11 Reliability reports.

    (c) The Electric Reliability Organization shall make available to the Commission, on a non-public and ongoing basis, access to the Transmission Availability Data System, Generator Availability Data System, and protection system misoperations databases, or any successor databases thereto. Such access will be limited to:

    (1) Data regarding U.S. facilities; and

    (2) Data that is required to be provided to the ERO.

    The following appendix will not appear in the Code of Federal Regulations.

    Appendix Commenters American Public Power Association, Large Public Power Council, and the Transmission Access Policy Study Group (collectively, Public Power Associations) Canadian Electricity Association (CEA) David Jonas Bardin (David Bardin) Edison Electric Institute, Electric Power Supply Association, Electricity Consumers Resource Council, and the National Rural Electric Cooperative Association (collectively, Trade Associations) Foundation for Resilient Societies (Resilient Societies) Kansas City Power & Light Company (KCP&L) North American Electric Reliability Corporation (NERC) Northwest Public Power Association (NWPPA) Rio Tinto Alcan Inc. (RTA) SGS Statistical Services (SGS) Tri-State Generation and Transmission Association, Inc. (Tri-State) Western Electric Coordinating Council (WECC) Western Interconnection Regional Advisory Board (WIRAB)
    [FR Doc. 2016-14760 Filed 7-11-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Parts 1 and 602 [TD 9775] RIN 1545-BN26 Requirement To Notify the IRS of Intent To Operate as a Section 501(c)(4) Organization; Final and Temporary Regulations AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Final and temporary regulations.

    SUMMARY:

    This document contains final and temporary regulations relating to the requirement, added by the Protecting Americans from Tax Hikes Act of 2015, that organizations must notify the IRS of their intent to operate under section 501(c)(4) of the Internal Revenue Code (Code). The regulations affect organizations described in section 501(c)(4) (section 501(c)(4) organizations) that are organized after December 18, 2015, and certain section 501(c)(4) organizations existing on that date. The text of the temporary regulations serves as the text of the proposed regulations set forth in the related notice of proposed rulemaking (REG-101689-16) published in the Proposed Rules section in this issue of the Federal Register.

    DATES:

    Effective Date: These regulations are effective on July 8, 2016.

    Applicability Date: For date of applicability, see § 1.506-1T(f).

    FOR FURTHER INFORMATION CONTACT:

    Chelsea Rubin at (202) 317-5800 (not a toll-free number).

    SUPPLEMENTARY INFORMATION:

    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.

    Background

    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.

    1. Section 501(c)(4) Organizations

    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.

    2. The PATH Act

    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

    1 The separate procedure by which an organization may request a determination of tax-exempt status is prescribed in Rev. Proc. 2016-5, 2016-1 IRB 188, or its successor.

    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.

    3. Notice 2016-09

    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.

    Explanation of Provisions 1. Overview of 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.

    2. The Notification

    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.

    3. Special Rules for Organizations Organized on or Before July 8, 2016

    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.

    4. Failure 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.

    5. Separate Procedure by Which an Organization May Request an IRS Determination That It Qualifies for Section 501(c)(4) Exempt Status

    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.

    6. No Additional Information Required on Form 990 or 990-EZ at This Time

    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.

    Statement of Availability of IRS Documents

    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.

    Special Analyses

    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.

    Drafting Information

    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.

    List of Subjects 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

    26 CFR Part 602

    Reporting and recordkeeping requirements.

    Adoption of Amendments to the Regulations

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

    PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read in part as follows: Authority:

    26 U.S.C. 7805 * * *

    Par 2. Section 1.506-1T is added to read as follows:
    § 1.506-1T Organizations required to notify Commissioner of intent to operate under section 501(c)(4) (temporary).

    (a) Notification requirement—(1) In general. Except as provided in paragraph (b) of this section, an organization (whether domestic or foreign) described in section 501(c)(4) must, no later than 60 days after the date the organization is organized, notify the Commissioner that it is operating as an organization described in section 501(c)(4) by submitting a completed Form 8976, “Notice of Intent to Operate Under Section 501(c)(4),” or its successor (the notification). The notification must be submitted in accordance with the form and its instructions. The notification must include the information specified in paragraph (a)(2) of this section and be accompanied by payment of the user fee described in paragraph (a)(3) of this section. Additional guidance on the procedure for submitting the notification may be provided in published guidance in the Internal Revenue Bulletin (see § 601.601(d)(2) of this chapter) or in other guidance, such as forms or instructions, issued with respect to the notification.

    (2) Contents of the notification. The notification must include the following information:

    (i) The name, address, and taxpayer identification number of the organization.

    (ii) The date on which, and the state or other jurisdiction under the laws of which, the organization was organized (that is, formed as a legal entity). For an organization formed outside the United States, the jurisdiction is the foreign country under the laws of which it is organized.

    (iii) A statement of the purpose of the organization.

    (iv) Such additional information as may be specified in published guidance in the Internal Revenue Bulletin (see § 601.601(d)(2) of this chapter) or in other guidance, such as forms or instructions, issued with respect to the notification.

    (3) User fee. The notification must be accompanied by payment of the user fee set forth by published guidance in the Internal Revenue Bulletin (see § 601.601(d)(2) of this chapter) or in other guidance, such as forms or instructions, issued with respect to the notification.

    (4) Extension for reasonable cause. The Commissioner may, for reasonable cause, extend the 60-day period for submitting the notification.

    (b) Special rules for organizations that were organized on or before July 8, 2016—(1) Notification requirement does not apply to organizations that filed with the IRS on or before December 18, 2015. The requirement to submit the notification does not apply to any organization described in section 501(c)(4) that, on or before December 18, 2015, either—

    (i) Applied for a written determination of recognition as an organization described in section 501(c)(4) in accordance with § 1.501(a)-1 and all applicable guidance published in the Internal Revenue Bulletin (see § 601.601(d)(2) of this chapter), forms, and instructions; or

    (ii) Filed at least one annual information return or annual electronic notification required under section 6033(a)(1) or (i).

    (2) Transition relief available for organizations that filed with the IRS on or before July 8, 2016. An organization described in section 501(c)(4) is not required to submit the notification if, on or before July 8, 2016, the organization either—

    (i) Applied for a written determination of recognition as an organization described in section 501(c)(4) in accordance with § 1.501(a)-1 and all applicable guidance published in the Internal Revenue Bulletin (see § 601.601(d)(2) of this chapter), forms, and instructions; or

    (ii) Filed at least one annual information return or annual electronic notification required under section 6033(a)(1) or (i).

    (3) Extended due date. An organization that was organized on or before July 8, 2016, and is not described in paragraph (b)(1) or (2) of this section, will satisfy the requirement to submit the notification if the notification is submitted on or before September 6, 2016.

    (c) Failure to submit the notification. For information on the penalties for failure to submit the notification, the applicable reasonable cause exception, and applicable special rules, see section 6652(c)(4) through (6).

    (d) Acknowledgment of receipt. Within 60 days after receipt of the notification, the Commissioner will send the organization an acknowledgment of such receipt. This acknowledgment is not a determination by the Commissioner that the organization qualifies for exemption under section 501(a) as an organization described in section 501(c)(4). See paragraph (e) of this section.

    (e) Separate procedure by which an organization may request an IRS determination that it qualifies for section 501(c)(4) tax-exempt status. Submission of the notification does not constitute a request by an organization for a determination by the Commissioner that the organization qualifies for exemption under section 501(a) as an organization described in section 501(c)(4). An organization seeking IRS recognition of its tax-exempt status must separately request such a determination in accordance with § 1.501(a)-1 and all applicable guidance published in the Internal Revenue Bulletin (see § 601.601(d)(2) of this chapter), forms, and instructions.

    (f) Effective/applicability date. This section applies on and after July 8, 2016.

    (g) Expiration date. The applicability of this section expires on or before July 8, 2019.

    PART 602—OMB CONTROL NUMBERS UNDER THE PAPERWORK REDUCTION ACT Par. 3. The authority for part 602 continues to read as follows: Authority:

    26 U.S.C. 7805 * * *

    Par. 4. In § 602.101, paragraph (b) is amended by adding the following entry in numerical order to the table to read as follows:
    § 602.101 OMB Control numbers.

    (b) * * *

    CFR part or section where Identified and described Current OMB control No. *    *    *    *    * 1.506-1T 1545-2268 *    *    *    *    *
    John Dalrymple, Deputy Commissioner for Services and Enforcement. Approved: June 24, 2016. Mark J. Mazur, Assistant Secretary of the Treasury (Tax Policy).
    [FR Doc. 2016-16338 Filed 7-8-16; 11:15 am] BILLING CODE 4830-01-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Parts 301 and 602 [TD 9768] RIN 1545-BN20 Certified Professional Employer Organizations; Correction AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Final and temporary regulations; correction.

    SUMMARY:

    This document contains corrections to final and temporary regulations (TD 9768) that were published in the Federal Register on May 6, 2016 (81 FR 27315). The final and temporary regulations are relating to certified professional employer organizations (CPEOs). The Stephen Beck, Jr. Achieving a Better Life Experience Act of 2014 requires the IRS to establish a voluntary certification program for professional employer organizations. These final and temporary regulations contain the requirements a person must satisfy in order to become and remain a CPEO.

    DATES:

    This correction is effective on July 12, 2016 and applicable on May 6, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Melissa L. Duce at (202) 317-6798 (not a toll free number).

    SUPPLEMENTARY INFORMATION:

    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.

    Need for Correction

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

    Correction of Publication

    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”.

    Martin V. Franks, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel, (Procedure and Administration).
    [FR Doc. 2016-16400 Filed 7-11-16; 8:45 am] BILLING CODE 4830-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Parts 97 and 160 46 CFR Part 97 [Docket No. USCG-2000-7080] RIN 1625-AA25 [Formerly RIN 2115-AF97] Cargo Securing Manuals AGENCY:

    Coast Guard, DHS.

    ACTION:

    Interim rule; information collection approval.

    SUMMARY:

    The Coast Guard announces that it has received approval from the Office of Management and Budget for an information collection request associated with the Cargo Securing Manuals interim rule we published in the Federal Register on May 9, 2016. In that rule, we stated the interim rule will impose new information collection requirements and that we would submit these new information collection requirements to OMB for its review and publish a document in the Federal Register announcing the results of OMB's review. OMB approved this new collection of information, entitled Cargo Securing Manuals, on June 23, 2016, and assigned it OMB control number 1625-0122.

    DATES:

    On June 23, 2016, OMB approved the Coast Guard's collection of information request associated with the Cargo Securing Manuals interim rule published May 9, 2016 at 81 FR 27992. OMB's approval for this collection of information expires on June 30, 2019.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Mr. Ken Smith, Environmental Standards Division (CG-OES-2), U.S. Coast Guard; telephone 202-372-1413, email [email protected]

    SUPPLEMENTARY INFORMATION:

    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.

    Background

    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).

    Dated: July 6, 2016. F.J. Sturm, Acting Director, Commercial Regulations and Standards.
    [FR Doc. 2016-16416 Filed 7-11-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket Number USCG-2016-0011] RIN 1625- AA08 Special Local Regulation; Drag Boat Championship, Intracoastal Waterway; Bucksport, SC AGENCY:

    Coast Guard, DHS

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a special local regulation on the Atlantic Intracoastal Waterway in Bucksport, South Carolina during the Bucksport/Southeastern Drag Boat Summer Championship, on August 13, 2016 and August 14, 2016. This special local regulation is necessary to ensure the safety of participants, spectators, and the general public during the event. This regulation prohibits persons and vessels from being in the regulated area unless authorized by the Captain of the Port Charleston or a designated representative.

    DATES:

    This rule is effective from August 13, 2016 through August 14, 2016.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0011 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this rule, call or email Lieutenant John Downing, Sector Charleston Office of Waterways Management, Coast Guard; telephone (843) 740-3184, email [email protected]

    SUPPLEMENTARY INFORMATION:

    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

    II. Background Information and Regulatory History

    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.

    III. Legal Authority and Need for Rule

    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.

    IV. Discussion of Comments, Changes, and the Rule

    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.

    V. Regulatory Analyses

    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.

    A. Regulatory Planning and Review

    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.

    B. Impact on Small Entities

    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.

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

    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.

    E. Unfunded Mandates Reform Act

    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.

    F. Environment

    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.

    G. Protest Activities

    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.

    List of Subjects in 33 CFR Part 100

    Marine Safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.

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

    PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS 1. The authority citation for part 100 continues to read as follows: Authority:

    33 U.S.C. 1233.

    2. Add § 100.35T07-0011 to read as follows:
    § 100.35T07-0011 Bucksport/Southeastern Drag Boat Summer Championship Atlantic Intracoastal Waterway; Bucksport, SC.

    (a) Regulated Area. All waters of the Atlantic Intracoastal Waterway encompassed by a line connecting the following points: Point 1 in position 33°39′13″ N., 079°05′36″ W.; thence west to point 2 in position 33°39′17″ N., 079°05′46″ W.; thence south to point 3 in position 33°38′53″ N., 079°05′39″ W.; thence east to point 4 in position 33°38′54″ N., 079°05′31″ W.; thence north back to point 1. All coordinates are North American Datum 1983.

    (b) Definition. As used in this section, “designated representative” means Coast Guard Patrol Commanders, including Coast Guard coxswains, petty officers, and other officers operating Coast Guard vessels, and Federal, state, and local officers designated by or assisting the Captain of the Port Charleston in the enforcement of the regulated areas.

    (c) Regulations. (1) All persons and vessels are prohibited from entering, transiting through, anchoring in, or remaining within the regulated area, except persons and vessels participating in Bucksport/Southeastern Drag Boat Summer championship or serving as safety vessels. Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area 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 regulated area 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.

    (2) The Coast Guard will provide notice of the regulated area by Marine Safety Information Bulletins, Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

    (d) Enforcement period. This rule will be enforced daily from noon until 7 p.m. on August 13, and August 14, 2016.

    Dated: June 27, 2016. G.L. Tomasulo, Captain, U.S. Coast Guard, Captain of the Port Charleston.
    [FR Doc. 2016-16334 Filed 7-11-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket Number USCG-2016-0559] RIN 1625-AA08 Special Local Regulations; Marine Events Held in the Sector Long Island Sound Captain of the Port Zone AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing three special local regulations for three separate marine events within the Coast Guard Sector Long Island Sound (LIS) Captain of the Port (COTP) Zone. This temporary final rule is necessary to provide for the safety of life on navigable waters during these events. Entry into, transit through, mooring, or anchoring within these regulated areas is prohibited unless authorized by COTP Sector Long Island Sound.

    DATES:

    This rule is effective without actual notice from 12:01 a.m. on July 12, 2016 until 11:00 a.m. on August 6, 2016. For the purposes of enforcement, actual notice will be used from the date the rule was signed, June 23, 2016, until July 12, 2016.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0559 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, contact Petty Officer Jay TerVeen, Prevention Department, Coast Guard Sector Long Island Sound, telephone (203) 468-4446, email [email protected]

    SUPPLEMENTARY INFORMATION:

    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.

    III. Legal Authority and Need for Rule

    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.

    IV. Discussion of the Rule

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

    Special Local Regulations 1. Jones Beach Fireworks Display Location: There will be three areas created for the special local regulation. The first area, “No Entry Area”, is on the navigable waterway located along the south shore of Jones Beach State Park. The second area, “Slow/No Wake Area”, is located on the navigable waterway between Meadowbrook State Parkway and Wantagh State Parkway. The third area, “No Southbound Traffic Area”, in the navigable waters of Zach's Bay. 2. Mystic Sharkfest Swim Location: All waters of Mystic River off Mystic, CT contained within the following area; beginning at a point on land in position at 41°21′41″ N., 071°58′01″ W.; then south-west across Mystic River to a point on land in position at 41°21′36″ N., 071°58′05″ W.; near Pearl Street then south-east along the shoreline to a point on land in position at 41°21′31″ N.; 071°58′02″ W.; near Park Place; then south-west along the shoreline to a point on land in position at 41°21′27″ N., 071°58′07″ W.; near Gravel Street; then south along the shoreline to a point on land in position 41°21′10″ N, 071°58′14″ W.; then east across Mystic River to a point on land in position 41°21′09″ N., 071°58′11″ W.; then north along the shoreline to a point on land in position 41°21′21″ N., 071°58′02″ W., then east along the shoreline to a point on land in position 41°21′25″ N., 071°57′53″ W. near Holmes Street, then north along the shoreline to a point on land in position 41°21′38″ N., 071°57′53″ W.; near the Mystic Seaport Museum and then northwest along the shoreline back to point of origin (NAD 83). 3. Island Beach Two Mile Swim Location: All waters of Captain Harbor between Little Captain's Island and Bower's Island that are located within the box formed by connecting four points in the following positions. Beginning at 40°59′23.35″ N., 073°36′42.05″ W., then northwest to 40°59′51.04″ N., 073°37′57.32″ W., then southwest to 40°59′45.17″ N., 073°38′01.18″ W., then southeast to 40°59′17.38″ N., 073°36′45.90″ W., then northeast to the beginning point at 40°59′23.35″ N., 073°36′42.05″ W.; (NAD 83).

    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.

    V. Regulatory Analyses

    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.

    A. Regulatory Planning and Review

    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.

    B. Impact on Small Entities

    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.

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

    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.

    E. Unfunded Mandates Reform Act

    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.

    F. Environment

    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.

    G. Protest Activities

    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.

    List of Subjects in 33 CFR Part 100

    Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.

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

    PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS 1. The authority citation for Part 100 continues to read as follows: Authority:

    33 U.S.C. 1233.

    2. Add § 100.T01-0559 to read as follows:
    § 100.T01-0559 Special Local Regulations; Marine Events held in the Sector Long Island Sound Captain of the Port Zone.

    (a) Location. This section will be enforced at the locations listed for each event in the Table 1 to § 100.T01-0559.

    (b) Enforcement Period. This rule will be enforced on the dates and times listed for each event in Table 1 to § 100.T01-0559.

    (c) Definitions. The following definitions apply to this section: A “designated representative” is any Coast Guard commissioned, warrant, or petty officer of the U.S. Coast Guard who has been designated by the COTP, Sector Long Island Sound, to act on his or her behalf. The designated representative may be on an official patrol vessel or may be on shore and will communicate with vessels via VHF-FM radio or loudhailer. “Official patrol vessels” may consist of any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement vessels assigned or approved by the COTP Sector Long Island Sound. In addition, members of the Coast Guard Auxiliary may be present to inform vessel operators of this regulation.

    (d) Regulations. (1) The general regulations contained in 33 CFR 100.35 apply.

    (2) Operators of vessels desiring to deviate from these regulations should contact the COTP Sector Long Island Sound at (203) 468-4401 (Sector LIS command center) or the designated representative via VHF channel 16 to obtain permission to do so.

    (3) Any vessel given permission to deviate from these regulations must comply with all directions given to them by the COTP Sector Long Island Sound, or the designated on-scene representative.

    (4) Upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing light or other means, the operator of the vessel shall proceed as directed.

    Table 1 to § 100.T01-0559—Special Local Regulations 1. Jones Beach Fireworks Display • Date: July 4, 2016.
  • • Rain Date: July 5, 2016.
  • • Time: 9:00 p.m. to 10:25 p.m. • Location: “No Entry Area”: [Barge Location] “Slow/No Wake Area”: All navigable waters between Meadowbrook State Parkway and Wantagh State Parkway and contained within the following area. Beginning in approximate position 40°35′49.01″ N., 73°32′33.63″ W.; then north along the Meadowbrook State Parkway to its intersection with Merrick Road in approximate position 40°39′14.00″ N., 73°34′00.76″ W.; then east along Merrick Road to its intersection with Wantagh State Parkway in approximate position 40°39′51.32″ N., 73°30′43.36″ W.; then south along the Wantagh State Parkway to its intersection with Ocean Parkway in approximate position 40°35′47.30″ N., 73°30′29.17″ W. then west along Ocean Parkway to its intersection with Meadowbrook State Parkway at the point of origin in approximate position 40°35′49.01″ N., 73°32′33.63″ W.;“ No Southbound Traffic Area”: All navigable waters of Zach's Bay south of the line connecting a point near the western entrance to Zach's Bay in approximate position 40°36′29.20″ N., 073°29′22.88″ W.; and a point near the eastern entrance of Zach's Bay in approximate position 40°36′16.53″ N., 073°28′57.26″ W. 2. Mystic Sharkfest Swim • Date: July 9, 2016.
  • • Time: 7:30 a.m. to 10:00 a.m.
  • • Location: “All waters of Mystic River off Mystic, CT contained within the following area; beginning at a point on land in position at 41°21′41″ N., 071°58′01″ W.; then south-west across Mystic River to a point on land in position at 41°21′36″ N., 071°58′05″ W. near Pearl Street then south-east along the shoreline to a point on land in position at 41°21′31″ N., 071°58′02″ W. near Park Place; then south-west along the shoreline to a point on land in position at 41°21′27″ N., 071°58′07″ W. near Gravel Street; then south along the shoreline to a point on land in position 41°21′10″ N., 071°58′14″ W.; then east across Mystic River to a point on land in position 41°21′09″ N., 071°58′11″ W.; then north along the shoreline to a point on land in position 41°21′21″ N., 071°58′02″ W., then east along the shoreline to a point on land in position 41°21′25″ N., 071°57′53″ W. near Holmes Street, then north along the shoreline to a point on land in position 41°21′38″ N., 071°57′53″ W. near the Mystic Seaport Museum and then northwest along the shoreline back to point of origin” (NAD 83). • Additional Stipulations: (1) In accordance with the general regulations found in section 100.35 of this part, we are requiring non-event vessels transiting through the area during the enforcement period to travel at no wake speeds or 6 knots, whichever is slower and that vessels shall not block or impede the transit of event participants, event safety vessels or official patrol vessels in the regulated area unless authorized by the Captain of the Port (COTP) or designated representatives. (2) All persons transiting through the area shall maintain a minimum distance of 100 feet from the swimmers. 3. Island Beach Two Mile Swim • Date: August 3, 2016.
  • • Time: 7:30 a.m. to 11:00 a.m.
  • • Location: The following area is a safety zone: All waters of Captain Harbor between Little Captain′s Island and Bower's Island that are located within the box formed by connecting four points in the following positions. Beginning at 40°59′23.35″ N. 073°36′42.05″ W., then northwest to 40°59′51.04″ N. 073°37′57.32″ W., then southwest to 40°59′45.17″ N. 073°38′01.18″ W., then southeast to 40°59′17.38″ N. 073°36′45.90″ W., then northeast to the beginning point at 40°59′23.35″ N. 073°36′42.05″ W. (NAD 83). • Additional stipulations: All persons transiting through the area shall maintain a minimum distance of 100 yards from the swimmers.
    Dated: June 23, 2016. K.B. Reed, Commander, U.S. Coast Guard, Acting Captain of the Port Sector Long Island Sound.
    [FR Doc. 2016-16518 Filed 7-11-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Parts 100, 117, 147, and 165 [USCG-2016-0607] 2016 Quarterly Listings; Safety Zones, Security Zones, Special Local Regulations, Drawbridge Operation Regulations and Regulated Navigation Areas AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of expired temporary rules issued.

    SUMMARY:

    This document provides notice of substantive rules issued by the Coast Guard that were made temporarily effective but expired before they could be published in the Federal Register. This notice lists temporary safety zones, security zones, special local regulations, drawbridge operation regulations and regulated navigation areas, all of limited duration and for which timely publication in the Federal Register was not possible.

    DATES:

    This document lists temporary Coast Guard rules that became effective, primarily between January 2016 and March 2016, unless otherwise indicated, and were terminated before they could be published in the Federal Register.

    ADDRESSES:

    Temporary rules listed in this document may be viewed online, under their respective docket numbers, using the Federal eRulemaking Portal at http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    For questions on this notice contact Yeoman First Class Maria Fiorella Villanueva, Office of Regulations and Administrative Law, telephone (202) 372-3862.

    SUPPLEMENTARY INFORMATION:

    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.

    Docket No. Type Location Effective date USCG-2013-0296 Special Local Regulation Poonce, PR 9/1/2013 USCG-2013-0978 Safety Zone Nashville, TN 12/6/2013 USCG-2014-0409 Safety Zone Cocos Lagoon, Guam 6/1/2014 USCG-2014-0690 Special Local Regulation Qguada, PR 8/3/2014 USCG-2014-0792 Safety Zone Galveston, TX 8/18/2014 USCG-2014-0770 Safety Zone San Francisco, CA 9/15/2014 USCG-2012-0087 Security Zone Tacoma, WA 12/1/2014 USCG-2015-0306 Safety Zone Cabo Rojo, PR 4/19/2015 USCG-2015-0266 Safety Zone Alexandria, LA 5/2/2015 USCG-2015-0405 Safety Zone Catoosa, OK 6/27/2015 USCG-2015-0846 Safety Zone San Juan Area 8/27/2015 USCG-2015-0442 Special Local Regulation Fort Smith, AR 10/10/2015 USCG-2015-0938 Safety Zone San Francisco, CA 11/1/2015 USCG-2015-0982 Safety Zone Memphis, TN 12/1/2015 USCG-2015-1028 Safety Zone Sausalito, CA 12/12/2015 USCG-2015-1105 Safety Zone Memphis, TN 12/14/2015 USCG-2015-0988 Safety Zone Tennessee River 12/28/2015 USCG-2015-1089 Safety Zone Upper Mississippi River 12/30/2015 USCG-2015-1036 Safety Zone Natchez, Mississippi 12/31/2015 USCG-2015-1044 Safety Zone Northport, NY 1/1/2016 USCG-2015-1122 Safety Zone Lower Mississippi River 1/1/2016 USCG-2014-0795 Safety Zone Seattle, WA 1/5/2016 USCG-2016-0013 Safety Zone Los Angeles, CA 1/7/2016 USCG-2016-0027 Safety Zone Lower Mississippi River 1/9/2016 USCG-2015-0655 Safety Zone Guam 1/10/2016 USCG-2016-0008 Safety Zone Pascgoula, MS 1/11/2016 USCG-2015-1117 Security Zone Washington, DC 1/12/2016 USCG-2016-0043 Safety Zone Lower Mississippi River 1/12/2016 USCG-2016-0015 Security Zone Baltimore, MD 1/13/2016 USCG-2016-0041 Security Zone Philadelphia, PA 1/15/2016 USCG-2016-0051 Safety Zone Alton, IL 1/15/2016 USCG-2016-0053 Safety Zone North Shore Oahu, HI 1/15/2016 USCG-2016-0050 Safety Zone Lake Charles, LA 1/15/2016 USCG-2016-0050 Safety Zone Lake Charles, LA 1/15/2016 USCG-2015-1129 Safety Zone Tanapag Harbor, Saipan 1/16/2016 USCG-2016-0049 Safety Zone San Pedro, CA 1/18/2016 USCG-2016-0052 Security Zone Detroit, MI 1/20/2016 USCG-2015-1085 Safety Zone San Francisco, CA 1/20/2016 USCG-2016-0063 Safety Zone Stockton, CA 1/20/2016 USCG-2016-0068 Safety Zone North Shore Oahu, HI 1/20/2016 USCG-2016-0073 Safety Zone Lower Mississippi River 1/21/2016 USCG-2016-0075 Safety Zone Ventura, CA 1/22/2016 USCG-2014-0293 Safety Zone Port Baltimore, MD 1/22/2016 USCG-2016-0071 Safety Zone Casmalia, CA 1/28/2016 USCG-2015-1128 Safety Zone San Francisco, CA 1/28/2016 USCG-2016-0055 Safety Zone Alton, IL 1/29/2016 USCG-2015-0530 Safety Zone Lake Michigan Zone 1/30/2016 USCG-2016-0069 Safety Zone Chicago, IL 1/30/2016 USCG-2016-0091 Safety Zone Los Angeles, CA 1/31/2016 USCG-2016-0101 Safety Zone Lower Mississippi River 2/2/2016 USCG-2016-0001 Safety Zone San Francisco, CA 2/3/2016 USCG-2016-0108 Safety Zone Los Angeles and San Pedro, CA 2/5/2016 USCG-2015-1077 Special Local Regulation Brandenton, FL 2/6/2016 USCG-2015-1025 Safety Zone Manhattan, NY 2/6/2016 USCG-2016-0079 Safety Zone San Pedro, CA 2/6/2016 USCG-2016-0030 Safety Zone San Francisco, CA 2/6/2016 USCG-2016-0107 Safety Zone Ventura, CA 2/9/2016 USCG-2016-0068 Safety Zone North Shore Oahu, HI 2/10/2016 USCG-2015-1130 Safety Zone Santa Beach, FL 2/11/2016 USCG-2016-0042 Safety Zone Lower Mississippi River 2/13/2016 USCG-2016-0149 Safety Zone Pascagoula, MS 2/13/2016 USCG-2016-0105 Security Zone Anaheim Bay, CA 2/17/2016 USCG-2016-0146 Safety Zone Harbor Ohau, HI 2/20/2016 USCG-2015-1092 Safety Zone Nashville, TN 2/24/2016 USCG-2016-0059 Safety Zone Sag Harbor, NY 2/28/2016 USCG-2016-0166 Safety Zone Urbanna, VA 2/29/2016 USCG-2016-0197 Safety Zone Lake Charles, LA 3/8/2016 USCG-2016-0089 Drawbridges Sacramento, CA 3/12/2016 USCG-2016-0216 Safety Zone Orange, TX 3/13/2016 USCG-2016-0223 Safety Zone Los Angeles, CA 3/17/2016 USCG-2016-0006 Special Local Regulation Nashville, TN 3/19/2016 USCG-2016-0211 Drawbridges San Francisco, CA 3/20/2016 USCG-2016-0234 Safety Zone Lower Mississippi River 3/22/2016 USCG-2014-0797 Safety Zone Cathlamnet, WA 3/24/2016 USCG-2014-0798 Safety Zone Coos Bay, OR 3/24/2016 USCG-2016-0231 Security Zone Miami, FL 3/24/2016 Dated: June 27, 2016. Rebecca Orban, Acting Chief, Office of Regulations and Administrative Law.
    [FR Doc. 2016-16345 Filed 7-11-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2014-1057] RIN 1625-AA09 Drawbridge Operation Regulation; Norwalk River, Norwalk, CT AGENCY:

    Coast Guard, DHS.

    ACTION:

    Final rule.

    SUMMARY:

    The Coast Guard is modifying the operating schedule that governs the Metro-North WALK Bridge across the Norwalk River, mile 0.1, at Norwalk, Connecticut. The bridge owner submitted a request to require a greater advance notice for bridge openings and to increase time periods the bridge remains in the closed position during the weekday morning and evening rush hours. It is expected that this change to the regulations will create efficiency in drawbridge operations while continuing to meet the reasonable needs of navigation.

    DATES:

    This rule is effective August 11, 2016.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type “USCG-2014-1057” in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Mr. Christopher J. Bisignano, Supervisory Bridge Management Specialist, First Coast Guard District, Coast Guard; telephone (212) 514-4331 or email [email protected]

    SUPPLEMENTARY INFORMATION:

    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.

    III. Legal Authority and Need for Rule

    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.

    IV. Discussion of Comments, Changes and the Final Rule

    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.

    V. Regulatory Analyses

    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.

    A. Regulatory Planning and Review

    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.

    B. Impact on Small Entities

    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.

    C. Collection of Information

    This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

    D. Federalism and Indian Tribal Government

    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.

    E. Unfunded Mandates Reform Act

    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.

    F. Environment

    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.

    G. Protest Activities

    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.

    List of Subjects in 33 CFR Part 117

    Bridges.

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

    PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority:

    33 U.S.C. 499; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.

    2. Revise § 117.217, paragraph (b), to read as follows:
    § 117.217 Norwalk River.

    (b) The draw of the Metro-North “WALK” Bridge, mile 0.1, at Norwalk, shall operate as follows:

    (1) The draw shall open on signal between 4:30 a.m. and 9 p.m. after at least a two hour advance notice is given; except that, from 5:45 a.m. through 9:45 a.m. and from 4 p.m. through 8 p.m., Monday through Friday excluding holidays, the draw need not open for the passage of vessel traffic unless an emergency exists.

    (2) From 9 p.m. through 4:30 a.m. the draw shall open on signal after at least a four hour advance notice is given.

    (3) A delay in opening the draw not to exceed 10 minutes may occur when a train scheduled to cross the bridge without stopping has entered the drawbridge lock.

    (4) Requests for bridge openings may be made by calling the bridge via marine radio VHF FM Channel 13 or the telephone number posted at the bridge.

    Dated: June 23, 2016. S.D. Poulin, Rear Admiral, U.S. Coast Guard Commander, First Coast Guard District.
    [FR Doc. 2016-16226 Filed 7-11-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-0462] RIN 1625-AA00 Safety Zone; Hudson River, South Nyack and Tarrytown, NY AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary interim final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary moving safety zone for navigable waters of the Hudson River within a 200-yard radius of the LEFT COAST LIFTER crane barge during heavy lift operations. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by heavy lift operations conducted by the crane barge in the vicinity of the Tappan Zee Bridge. Entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port.

    DATES:

    This rule is effective without actual notice from July 12, 2016 through December 31, 2018. For the purposes of enforcement, actual notice will be used from June 22, 2016 through July 12, 2016. Comments and related material must be received by the Coast Guard on or before August 11, 2016.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2016-0462 using the Federal e-Rulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email MST1 Kristina Pundt, Waterways Management Division, U.S. Coast Guard; telephone 718-354-4352, email [email protected]

    SUPPLEMENTARY INFORMATION:

    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.

    III. Legal Authority and Need for Rule

    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.

    IV. Discussion of the Rule

    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.

    V. Regulatory Analyses

    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.

    A. Regulatory Planning and Review

    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.

    B. Impact on Small Entities

    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.

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

    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.

    E. Unfunded Mandates Reform Act

    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.

    F. Environment

    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.

    G. Protest Activities

    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.

    VI. Public Participation and Request for Comments

    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.

    List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.

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

    PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority:

    33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

    2. Add § 165.T01-0462 to read as follows:
    § 165.T01-0462 Safety Zone; Tappan Zee Bridge Construction Project, Hudson River, South Nyack and Tarrytown, NY.

    (a) Location. The following area is a safety zone: All navigable waters within 200 yards of the crane barge LEFT COAST LIFTER while conducting heavy lift operations on the Hudson River.

    (b) Definitions. As used in this section, designated representative means is any Coast Guard commissioned, warrant or petty officer who has been designated by the COTP to act on the COTP's behalf. The designated representative may be on a Coast Guard vessel or New York State Police, Westchester County Police, Rockland County Police, or other designated craft; or may be on shore and will communicate with vessels via VHF-FM radio or loudhailer. Members of the Coast Guard Auxiliary may be present to inform vessel operators of this regulation.

    (c) Regulations. (1) Under the general safety zone regulations in subpart C of this part, you may not enter the safety zone described in paragraph (a) of this section unless authorized by the COTP or a COTP designated representative.

    (2) To seek permission to enter, contact the COTP or the COTP's representative by VHF-FM channel 16 or by phone at (718) 354-4353 (Sector New York Command Center). Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or a COTP designated representative.

    (d) Enforcement period. This section will be enforced from June 22, 2016 through December 31, 2018.

    Dated: June 22, 2016. M.H. Day, Captain, U.S. Coast Guard, Captain of the Port New York.
    [FR Doc. 2016-16364 Filed 7-11-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF THE INTERIOR National Park Service 36 CFR Part 2 [NPS-WASO-AILO-15846; PX.XVPAD0522.0.1] RIN 1024-AD84 Gathering of Certain Plants or Plant Parts by Federally Recognized Indian Tribes for Traditional Purposes AGENCY:

    National Park Service, Interior.

    ACTION:

    Final rule.

    SUMMARY:

    The National Park Service is establishing a management framework to allow the gathering and removal of plants or plant parts by enrolled members of federally recognized Indian tribes for traditional purposes. The rule authorizes agreements between the National Park Service and federally recognized tribes that will facilitate the continuation of tribal cultural practices on lands within areas of the National Park System where those practices traditionally occurred, without causing a significant adverse impact to park resources or values. This rule respects those tribal cultural practices, furthers the government-to-government relationship between the United States and the tribes, and provides system-wide consistency for this aspect of National Park Service-tribal relations.

    DATES:

    This rule will be effective on August 11, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Joe Watkins, Office of Tribal Relations and American Cultures, National Park Service, 1201 Eye Street NW., Washington, DC 20005, 202-354-2126, [email protected]

    SUPPLEMENTARY INFORMATION:

    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.

    Background

    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.

    Authority To Promulgate the Rule

    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).

    Government-to-Government Relationship With Indian Tribes

    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.

    Tribal Consultation

    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.

    Gathering Limited to Enrolled Members of Federally Recognized Indian Tribes

    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.

    Gathering Limited to Indian Tribes Traditionally Associated With Specific Park Lands

    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.

    Government-to-Government Agreements

    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.

    Protecting Park Resources

    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.

    Respect for Tribal Cultural Traditions

    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.

    Traditional Gathering Needs May Be Site-Specific to National Park Lands

    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.

    Collaborative Research and Administration

    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.

    Relationship of the Rule to Existing Regulations

    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.

    NPS Areas in Alaska

    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.

    1 Klondike Gold Rush National Historical Park, Sitka National Historical Park, the former Mt. McKinley National Park, and the former Katmai National Monument.

    Summary of and Responses to Public Comments

    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:

    • Authority to promulgate the rule • Compliance with NEPA • Tribal consultation process • Process for authorizing gathering activities • Commercial use of gathered plants and plant parts • Treaty rights • Tribal Self-Governance Act • National Historic Preservation Act and Traditional Cultural Properties

    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.

    Authority To Promulgate the Rule

    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.

    2See 36 CFR 1.2(c) and 2.10(b) (1960) (allowing visitors to “pick and eat, but not carry out of the parks and monuments, 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).

    3 The NPS promulgated the current authorization in 1983, when it last comprehensively revised its public-use regulations. 48 FR 30252 (1983).

    4See 36 CFR 2.4 and 6.4 (1943) (allowing fishing in various national parks and monuments and in recreational demonstration areas, respectively).

    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.

    5See, e.g., § 5(e) of the Timbisha Shoshone Homeland Act, Public Law 106-423, 114 Stat. 1875, 1879 (2000) (directing Secretary of Interior to permit Timbisha Shoshone Tribe's continued use of park resources in “special use areas” in Death Valley National Park, California, “for traditional tribal purposes, practices, and activities,” not including the taking of wildlife); § 2101 of the Cerro Grande Fire Supplemental, Division C of the Act of July 13, 2000, Public Law 106-246, 114 Stat. 583, 592 (directing Secretary of Interior to allow enrolled members of Pueblos of San Ildefonso and Santa Clara to collect plants or plant products and minerals in Bandelier National Monument, New Mexico); 16 U.S.C. 460uu-47 (directing Secretary of Interior to “assure nonexclusive access to [El Malpais National Monument and El Malpais National Conservation Area, New Mexico] by Indian people for traditional cultural and religious purposes, including the harvesting of pine nuts”); and 16 U.S.C. 698j (directing Secretary of Interior to permit members of Miccosukee Tribe and Seminole Tribe “to continue their usual and customary use and occupancy of Federal or federally acquired lands and waters within [Big Cypress National Preserve, Florida], including hunting, fishing, and trapping on a subsistence basis and traditional tribal ceremonials”).

    6 36 CFR 2.1(d) is currently phrased as a limitation on a Superintendent's authority under other subsections of 36 CFR 2.1: “This section 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 or § 2.3.” That language first appeared in the NPS's regulations in 1983, when the NPS last comprehensively revised its public-use regulations. The NPS added that language to the final rule in response to comments on the proposed rule. In doing so, the NPS explained, “The Service recognizes that the American Indian Religious Freedom Act directs the exercise of discretion to accommodate Native religious practice consistent with statutory management obligations. The Service intends to provide reasonable access to, and use of, park lands and park resources by Native Americans for religious and traditional activities. However, the National Park Service is limited by law and regulations from authorizing the consumptive use of park resources.” 48 FR 30255 (1983) (emphasis added). The NPS Organic Act does indeed limit the NPS's authority to allow the consumptive use of park resources; however, it does not prohibit it. As discussed above, the NPS has long allowed certain consumptive uses of park resources and may allow the park-specific consumptive use of resources authorized by this rule as long as those resources are conserved overall and the consumptive use does not result in the impairment of park resources or values.

    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:

    an impact that, in the professional judgment of the responsible NPS manager, would harm the integrity of park resources or values, including the opportunities that otherwise would be present for the enjoyment of those resources or values. Whether an impact meets this definition depends on the particular resources and values that would be affected; the severity, duration, and timing of the impact; the direct and indirect effects of the impact; and the cumulative effects of the impact in question and other impacts. Management Policies 1.4.5

    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:

    As the ancestral homelands of many American Indian tribes, parks protect resources, sites, and vistas that are highly significant for the tribes. Therefore, the Service will pursue an open, collaborative relationship with American Indian tribes to help tribes maintain their cultural and spiritual practices and enhance the Park Service's understanding of the history and significance of sites and resources in the parks. Within the constraints of legal authority and its duty to protect park resources, the Service will work with tribal governments to provide access to park resources and places that are essential for the continuation of traditional American Indian cultural or religious practices.

    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:

    • Requiring that before tribal gathering activities may occur, the NPS and the tribe enter into a formal gathering agreement and the NPS issue the tribe a special use permit implementing the agreement. § 2.6(b) • Requiring that a tribe submit a formal request demonstrating threshold eligibility for negotiating a gathering agreement with the NPS. § 2.6(c) • Requiring that the Superintendent complete certain requirements before the NPS will enter into a gathering agreement. § 2.6(d) • Requiring that the NPS complete an environmental assessment and a finding of no significant impact under NEPA prior to entering into a gathering agreement with an Indian tribe. § 2.6(d) • Requiring that specific terms be included in each gathering agreement. § 2.6(f) • Requiring that each gathering agreement be concurred in by the NPS Regional Director. § 2.6(g) • Allowing the Superintendent to close park areas to gathering of plants and plant parts to protect environmental or scenic values or to protect natural resources. § 2.6(h) • Allowing the Superintendent to suspend an agreement or permit if terms or conditions are violated or if unanticipated or significant adverse impacts occur. § 2.6(i)

    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.

    Compliance With NEPA

    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.

    Tribal Consultation Process

    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.

    Process for Authorizing Gathering Activities

    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.

    Commercial Use of Gathered Plants and Plant Parts

    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.

    Treaty Rights

    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.

    Tribal Self-Governance Act

    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.

    National Historic Preservation Act and Traditional Cultural Properties

    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.

    Changes in the Final Rule

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

    § 2.6(a) Added definitions for “Plants or plant parts” and “Traditional gathering”. § 2.6(c)(2) Clarified that after receiving a request that contains the required information, the Superintendent will begin consultation with the requesting tribe in order to develop an agreement and will consult with any other tribe that has gathering rights in that park area. § 2.6(c)(2) Added a requirement that the Superintendent provide an initial response within 90 days after receiving a tribal request to enter into a gathering agreement. If the Superintendent fails to initiate consultation within 90 days, then the tribe may submit the request to the Regional Director. §§ 2.6(d)(2) and 2.6(d)(3) Combined these two related paragraphs into a single paragraph and added a requirement that the NPS prepare an environmental assessment and a finding of no significant impact that meets the requirements of NEPA before entering into an agreement to allow traditional gathering and removal. § 2.6(d)(4) Removed a redundant requirement that, before entering into a gathering agreement, the Superintendent must determine that the proposed gathering activities meet the requirements for issuing a permit under 36 CFR 1.6(a). This issue is addressed in paragraph 2.6(f)(2), which requires that permits be issued in accordance with section 36 CFR 1.6. § 2.6(f)(1)(v) (§ 2.6(f)(5) in proposed rule) Added a requirement that all agreements contain language prohibiting the gathering of any species listed as threatened or endangered under the Endangered Species Act. § 2.6(f)(1)(xi) Added a requirement that all agreements require periodic reviews of the status of gathering activities under the agreement. § 2.6(f)(1)(xiii) Added a requirement that a permit issued under a gathering agreement identify the tribal members designated by the tribe to gather plants or plant parts under the permit. § 2.6(g) Removed requirements that the Superintendent must obtain the written concurrence of the Regional Director before issuing a permit. § 2.6(k) Added a new section explaining the right of tribes to appeal decisions made by the Superintendent to the Regional Director. Section by Section Analysis Section 2.1(d)—Preservation of Natural, Cultural and Archeological Resources

    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.

    Section 2.6(a)—What terms do I need to know?

    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.

    Section 2.6(b)—How will the Superintendent authorize gathering and removal?

    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.

    Section 2.6(c)—How must a tribe request to enter into an agreement?

    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.

    Section 2.6(d)—What are the criteria for entering into agreements?

    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).

    Section 2.6(e)—When must the Superintendent deny a request to enter into an agreement?

    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.

    Section 2.6(f)—How will agreements be implemented?

    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.

    Section 2.6(g)—What concurrence must the Superintendent obtain?

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

    Section 2.6(h)—When will the Superintendent close areas to gathering and removal?

    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.

    Section 2.6(i)—When may an agreement or permit be suspended or terminated?

    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).

    Section 2.6(j)—When is gathering prohibited?

    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.

    Section 2.6(k)—How may a tribe appeal a decision under this rule?

    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.

    Compliance With Other Laws, Executive Orders, and Department Policy Regulatory Planning and Review (Executive Orders 12866 and 13563)

    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.

    Regulatory Flexibility Act (RFA)

    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.

    Small Business Regulatory Enforcement Fairness Act (SBREFA)

    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.

    Unfunded Mandates Reform Act (UMRA)

    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.

    Takings (Executive Order 12630)

    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.

    Federalism (Executive Order 13132)

    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.

    Civil Justice Reform (Executive Order 12988)

    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.

    Consultation With Indian Tribes (Executive Order 13175 and Department Policy)

    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.

    Paperwork Reduction Act of 1995

    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.

    Activity Estimated
  • number of
  • annual
  • responses
  • Completion
  • time per
  • response
  • (hours)
  • Estimated
  • total annual
  • burden
  • hours
  • Initial written request from an Indian tribal official 20 4 80 Agreement with Indian tribe 5 20 100 Appeals 5 10 50 Total 30 230

    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.

    National Environmental Policy Act (NEPA)

    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.

    Effects on the Energy Supply (Executive Order 13211)

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

    Drafting Information

    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.

    List of Subjects in 36 CFR Part 2

    National parks, Native Americans, Natural resources.

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

    PART 2—RESOURCE PROTECTION, PUBLIC USE AND RECREATION 1. The authority citation for Part 2 continues to read as follows: Authority:

    54 U.S.C. 100101, 100751, 320102.

    2. In § 2.1, revise paragraph (d) to read as follows:
    § 2.1 Preservation of natural, cultural and archeological resources.

    (d) This section shall not be construed as authorizing the taking, use, or possession of fish, wildlife, or plants for ceremonial or religious purposes, except for the gathering and removal of plants or plant parts by enrolled members of an Indian tribe in accordance with § 2.6, or where specifically authorized by federal statutory law, treaty, or in accordance with § 2.2 or § 2.3.

    3. Add § 2.6 to read as follows:
    § 2.6 Gathering of plants or plant parts by federally recognized Indian tribes.

    (a) What terms do I need to know? The following definitions apply only to this section.

    Indian tribe means an American Indian 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.

    Plants or plant parts means vascular plants or parts of vascular plants. No other types of plants may be gathered or removed under this section.

    Traditional association means a longstanding relationship of historical or cultural significance between an Indian tribe and a park area predating the establishment of the park area.

    Traditional gathering means the method of gathering plants or plant parts by hand or hand tools only. Traditional gathering does not include the use of tools or machinery powered by electricity, fossil fuels, or any other source of power except human power.

    Traditional purpose means 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.

    Tribal official means an elected or duly appointed official of the federally recognized government of an Indian tribe authorized to act on behalf of the tribe with respect to the subject matter of this regulation.

    (b) How may the Superintendent authorize traditional gathering and removal? After receiving a request from an Indian tribe to gather plants or plant parts within a park area, the Superintendent may enter into an agreement with the tribe to authorize the traditional gathering and removal of plants or plant parts for traditional purposes. The agreement will describe the terms and conditions under which the Superintendent may issue a gathering permit to the tribe under § 1.6 of this chapter. The permit will designate the enrolled tribal members who are authorized to gather and remove plants or plant parts within the park area.

    (c) How must a tribe request to enter into an agreement? (1) A tribal official must submit to the Superintendent a written request to enter into an agreement under this section that contains the following:

    (i) A description of the Indian tribe's traditional association to the park area;

    (ii) A description of the traditional purposes to which the traditional gathering activities will relate; and

    (iii) A description of the traditional gathering and removal activities that the tribe is interested in conducting, including a list of the plants or plant parts that tribal members wish to gather and the methods by which those plants or plant parts will be gathered.

    (2) Within 90 days after receiving a request that contains the information required by paragraph (c)(1) of this section, the Superintendent will initiate consultation with the requesting tribe in order to develop an agreement. If a Superintendent fails to initiate consultation within 90 days after receiving such a request, then the tribe may submit the request to the Regional Director. The Superintendent will also consult with any other tribe that has gathering rights in that park area under a treaty or federal statute or is party to a valid plant-gathering agreement with the NPS for that park area.

    (d) What are the requirements for entering into agreements? Before entering into an agreement to allow gathering and removal, the Superintendent must:

    (1) Determine, based on available information, including information provided by the tribe itself, that the tribe has a traditional association with the park area and is proposing to gather and remove plants or plant parts within the park area for a traditional purpose; and

    (2) Comply with all applicable federal laws, including the National Environmental Policy Act of 1969, the National Historic Preservation Act, and the Endangered Species Act. The compliance for the National Environmental Policy Act of 1969 must consist of an environmental assessment and must conclude with a finding of no significant impact, which must also document the determinations required by paragraph (d)(1) of this section. The Superintendent may not enter into an agreement that will have a significant adverse impact on park area resources or values.

    (e) When must the Superintendent deny a tribe's request to enter into a gathering agreement? The Superintendent must deny a tribe's request to enter into a gathering agreement if any of the requirements of paragraph (d) of this section are not satisfied.

    (f) What must agreements contain and how will they be implemented? (1) An agreement to gather and remove plants or plant parts must contain the following:

    (i) The name of the Indian tribe authorized to gather and remove plants and plant parts;

    (ii) The basis for the tribe's eligibility under paragraphs (c)(1)(i) and (ii) of this section to enter into the agreement;

    (iii) A description of the system to be used to administer traditional gathering and removal, including a clear means of identifying the enrolled tribal members who, under the permit, are designated by the Indian tribe to gather and remove;

    (iv) A means for the tribal government to keep the NPS regularly informed of which enrolled tribal members are designated by the tribe to gather and remove;

    (v) A description of the specific plants or plant parts that may be gathered and removed. The gathering agreement may not authorize the gathering of any species listed as threatened or endangered under the Endangered Species Act;

    (vi) Specification of the size and quantity of the plants or plant parts that may be gathered and removed;

    (vii) Identification of the times and locations at which the plants or plant parts may be gathered and removed;

    (viii) A statement that plants or plant parts may be gathered only by traditional gathering methods, i.e., only by hand or hand tools;

    (ix) A statement that the sale or commercial use of natural products (including plants or plant parts gathered under the agreement) is prohibited in the park area under § 2.1(c)(3)(v);

    (x) Protocols for monitoring traditional gathering and removal activities and thresholds above which NPS and tribal management intervention will occur;

    (xi) A requirement that the NPS and the tribe engage in periodic reviews of the status of traditional gathering activities under the agreement through consultation;

    (xii) Operating protocols and additional remedies for non-compliance with the terms of the agreement beyond those provided in this section, including mitigation, restoration, and remediation;

    (xiii) A requirement that a permit issued under the agreement identify the tribal members who are designated by the tribe to gather plants or plant parts under the permit;

    (xiv) A list of key officials; and

    (xv) Any additional terms or conditions that the parties may agree upon.

    (2) Agreements will be implemented through a permit issued in accordance with § 1.6 of this chapter. Activities allowed by a permit must fall within the scope of activities agreed upon in the agreement.

    (g) What concurrence must the Superintendent obtain? Before executing any gathering agreement, the Superintendent must obtain the written concurrence of the Regional Director.

    (h) When may the Superintendent close areas to gathering and removal? (1) Notwithstanding the terms of any agreement or permit executed under this section, the Superintendent may close park areas, or portions thereof, to the traditional gathering and removal of plants or plant products for any of the following reasons:

    (i) Maintenance of public health and safety;

    (ii) Protection of environmental or scenic values;

    (iii) Protection of natural or cultural resources;

    (iv) Aid to scientific research;

    (v) Implementation of management plans; or

    (vi) Avoidance of conflict among visitor use activities.

    (2) Closed areas may not be reopened to traditional gathering and removal until the reasons for the closure have been resolved.

    (3) Except in emergency situations, the Superintendent will provide public notice of any closure under this section in accordance with § 1.7 of this chapter. 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 closed area.

    (i) When may the Superintendent suspend or terminate an agreement or permit?

    (1) The Superintendent may suspend or terminate a gathering agreement or implementing permit if the tribe or a tribal member violates any term or condition of the agreement or the permit.

    (2) The Superintendent may suspend or terminate a gathering agreement or implementing permit if unanticipated or significant adverse impacts to park area resources or values occur.

    (3) If a Superintendent suspends or terminates a gathering agreement or implementing permit, then the Superintendent must prepare a written determination justifying the action and must provide a copy of the determination to the tribe.

    (4) Before terminating a gathering agreement or implementing permit, the Superintendent must obtain the written concurrence of the Regional Director.

    (j) When is gathering prohibited? Gathering, possession, or removal from a park area of plants or plant parts (including for traditional purposes) is prohibited except where specifically authorized by:

    (1) Federal statutory law;

    (2) Treaty rights;

    (3) Other regulations of this chapter; or

    (4) An agreement and permit issued under this section.

    (k) How may a tribe appeal a Superintendent's decision not to enter into a gathering agreement under this rule? If a Superintendent denies a tribe's request to enter into a gathering agreement, then the Superintendent will provide the tribe with a written decision setting forth the reasons for the denial. Within 60 days after receiving the Superintendent's written decision, the tribe may appeal, in writing, the Superintendent's decision to the Regional Director. The appeal 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. Within 45 days after receiving the tribe's written appeal, the Regional Director will issue and send to the tribe a written decision that affirms, reverses, or modifies the Superintendent's decision. The Regional Director's appeal decision will constitute the final agency action on the matter. Appeals under this section constitute an administrative review and are not conducted as an adjudicative proceeding.

    (l) Have the information collection requirements been approved? The Office of Management and Budget has reviewed and approved the information collection requirements in this section and assigned OMB Control No. 1024-0271. We will use this information to determine whether a traditional association and purpose can be documented in order to authorize traditional gathering. We may not conduct or sponsor and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number. You may send comments on any aspect of this information collection to the Information Collection Clearance Officer, National Park Service, 12201 Sunrise Valley Drive (Mail Stop 242), Reston, VA 20192.

    Karen Hyun, Deputy Assistant Secretary for Fish and Wildlife and Parks.
    [FR Doc. 2016-16434 Filed 7-11-16; 8:45 am] BILLING CODE 4310-EJ-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 81 [EPA-HQ-OAR-2014-0464; FRL-9948-87-OAR] Air Quality Designations for the 2010 Sulfur Dioxide (SO2) Primary National Ambient Air Quality Standard—Round 2 AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This rule establishes the initial air quality designations for certain areas in the United States (U.S.) for the 2010 primary sulfur dioxide (SO2) National Ambient Air Quality Standard (NAAQS). The Environmental Protection Agency (EPA) is designating the 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. The designations are based on the weight of evidence for each area, including available air quality monitoring data and air quality modeling. The Clean Air Act (CAA) directs areas designated nonattainment by this rule to undertake certain planning and pollution control activities to attain the SO2 NAAQS as expeditiously as practicable. This is the second round of area designations for the 2010 SO2 NAAQS.

    DATES:

    The effective date of this rule is September 12, 2016.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID NO. EPA-HQ-OAR-2014-0464. All documents in the docket are listed in the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in http://www.regulations.gov.

    In addition, the EPA has established a Web site for the initial SO2 designations rulemakings at: https://www.epa.gov/sulfur-dioxide-designations. The Web site includes the EPA's final SO2 designations, as well as state and tribal initial recommendation letters, the EPA's modification letters, technical support documents, responses to comments and other related technical information.

    FOR FURTHER INFORMATION CONTACT:

    For general questions concerning this action, please contact Rhea Jones, U.S. EPA, Office of Air Quality Planning and Standards, Air Quality Planning Division, C539-04, Research Triangle Park, NC 27711, telephone (919) 541-2940, email at [email protected]

    SUPPLEMENTARY INFORMATION:

    U.S. EPA Regional Office Contacts:

    Region I—Leiran Biton, telephone (617) 918-1267, email at [email protected] Region II—Henry Feingersh, telephone (212) 637-3382, email at [email protected] Region III—Irene Shandruk, telephone (215) 814-2166, email at [email protected] Region IV—Twunjala Bradley, telephone (404) 562-9352, email at [email protected] Region V—John Summerhays, telephone (312) 886-6067, email at [email protected] Region VI—Dayana Medina, telephone (214) 665-7241, email at [email protected] Region VII—David Peter, telephone (913) 551-7397, email at [email protected] Region VIII—Adam Clark, telephone (303) 312-7104, email at [email protected] Region IX—Gwen Yoshimura, telephone (415) 947-4134, email at [email protected] Region X—John Chi, U.S. EPA, telephone (206) 553-1185, email at [email protected]

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

    Regional offices States Dave Conroy, Chief, Air Programs Branch, EPA New England, 1 Congress Street, Suite 1100, Boston, MA 02114-2023, (617) 918-1661 Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont. Richard Ruvo, Chief, Air Planning Section, EPA Region II, 290 Broadway, 25th Floor, New York, NY 10007-1866, (212) 637-4014 New Jersey, New York, Puerto Rico and Virgin Islands. Cristina Fernandez, Associate Director, Office of Air Program Planning, EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2187, (215) 814-2178 Delaware, District of Columbia, Maryland, Pennsylvania, Virginia and West Virginia. R. Scott Davis, Chief, Air Planning Branch, EPA Region IV, Sam Nunn Atlanta Federal Center, 61 Forsyth, Street, SW, 12th Floor, Atlanta, GA 30303, (404) 562-9127 Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina and Tennessee. John Mooney, Chief, Air Programs Branch, EPA Region V, 77 West Jackson Street, Chicago, IL 60604, (312) 886-6043 Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin. Guy Donaldson, Chief, Air Planning Section, EPA Region VI, 1445 Ross Avenue, Dallas, TX 75202, (214) 665-7242 Arkansas, Louisiana, New Mexico, Oklahoma and Texas. Mike Jay, Chief, Air Programs Branch, EPA Region VII, 11201 Renner Blvd., Lenexa, KS 66129, (913) 551-7460 Iowa, Kansas, Missouri and Nebraska. Monica Morales, Acting Air Program Director, EPA Region VIII, 1595 Wynkoop Street, Denver, CO 80202-1129, (303) 312-6936 Colorado, Montana, North Dakota, South Dakota, Utah and Wyoming. Doris Lo, Air Planning Office, EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105, (415) 972-3959 American Samoa, Arizona, California, Guam, Hawaii, Nevada and Northern Mariana Islands. Debra Suzuki, Manager, State and Tribal Air Programs, EPA Region X, Office of Air, Waste, and Toxics, Mail Code OAQ-107, 1200 Sixth Avenue, Seattle, WA 98101, (206) 553-0985 Alaska, Idaho, Oregon and Washington. Table of Contents

    The following is an outline of the Preamble.

    I. Preamble Glossary of Terms and Acronyms II. What is the purpose of this action? III. What is the 2010 SO2 NAAQS and what are the health concerns that it addresses? IV. What are the CAA requirements for air quality designations and what action has the EPA taken to meet these requirements? V. What guidance did the EPA issue and how did the EPA apply the statutory requirements and applicable guidance to determine area designations and boundaries? VI. What air quality information has the EPA used for these designations? VII. How do the Round 2 designations affect Indian country? VIII. Where can I find information forming the basis for this rule and exchanges between the EPA, states and tribes related to this rule? IX. Environmental Justice Concerns X. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (URMA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act (NTTAA) J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act (CRA) L. Judicial Review I. Preamble Glossary of Terms and Acronyms

    The following are abbreviations of terms used in the preamble.

    APA Administrative Procedure Act CAA Clean Air Act CFR Code of Federal Regulations DC District of Columbia EO Executive Order EPA Environmental Protection Agency FR Federal Register NAAQS National Ambient Air Quality Standards NTTAA National Technology Transfer and Advancement Act OMB Office of Management and Budget SO2 Sulfur Dioxide SOX Sulfur Oxides RFA Regulatory Flexibility Act UMRA Unfunded Mandate Reform Act of 1995 TAR Tribal Authority Rule TAD Technical Assistance Document TSD Technical Support Document U.S. United States VCS Voluntary Consensus Standards II. What is the purpose of this action?

    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.

    1 Exceptional event claims influenced the EPA's designation for an area in Hawaii. The CAA and the EPA's implementing regulations allow for the exclusion of air quality monitoring data from use in regulatory determinations when there are exceedances and/or violations caused by events that satisfy the criteria within the Exceptional Events Rule codified at 40 CFR 50.1, 50.14 and 51.930. The exclusion of event-influenced data from the data set that is used to calculate design values could result in regulatory relief from an initial area designation as nonattainment. The design value used to determine the unclassifiable/attainment area designation for Hawaii County, Hawaii reflects the EPA's concurrence on multiple exceptional events claims influencing monitored concentrations at monitors in Hawaii County, Hawaii.

    III. What is the 2010 SO2 NAAQS and what are the health concerns that it addresses?

    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.

    2See Fact Sheet titled, “Revisions to the Primary National Ambient Air Quality Standard, Monitoring Network, and Data Reporting Requirements for Sulfur Dioxide” at http://www3.epa.gov/airquality/sulfurdioxide/pdfs/20100602fs.pdf.

    IV. What are the CAA requirements for air quality designations and what action has the EPA taken to meet these requirements?

    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.

    3 Consistent with designations for other pollutants, the EPA is using the designation category of “unclassifiable/attainment” for areas where appropriate air quality data demonstrate attainment (for SO2 this can be through monitoring and/or modeling) and for areas for which such data are not available but for which the EPA has reason to believe the areas are likely attainment and have not been determined to be contributing to nearby violations.

    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

    4 This view was confirmed in Catawba County v. EPA, 571 F.3d 20 (D.C. Cir. 2009).

    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.

    V. What guidance did the EPA issue and how did the EPA apply the statutory requirements and applicable guidance to determine area designations and boundaries?

    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.

    5See, “Area Designations for the 2010 Revised Primary Sulfur Dioxide National Ambient Air Quality Standards,” memorandum to Regional Air Division Directors, Regions I-X, from Stephen D. Page, dated March 24, 2011.

    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.

    VI. What air quality information has the EPA used for these 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.

    VII. How do the Round 2 designations affect Indian country?

    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.

    VIII. Where can I find information forming the basis for this rule and exchanges between the EPA, states and tribes related to this rule?

    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).

    IX. Environmental Justice Concerns

    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.

    X. Statutory and Executive Order Reviews

    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.

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    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.

    B. Paperwork Reduction Act (PRA)

    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.

    C. Regulatory Flexibility Act (RFA)

    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.

    D. Unfunded Mandates Reform Act (UMRA)

    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.

    E. Executive Order 13132: Federalism

    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.

    F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    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).

    G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

    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.

    H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

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

    I. National Technology Transfer and Advancement Act (NTTAA)

    This action does not involve technical standards.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    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.

    K. Congressional Review Act (CRA)

    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.

    L. Judicial Review

    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.

    List of Subjects in 40 CFR Part 81

    Environmental protection, Air pollution control, National parks, Wilderness areas.

    Dated: June 30, 2016. Gina McCarthy, Administrator.

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

    PART 81—DESIGNATIONS OF AREAS FOR AIR QUALITY PLANNING PURPOSES 1. The authority citation for part 81 continues to read as follows: Authority:

    42 U.S.C. 7401, et seq.

    Subpart C—Section 107 Attainment Status Designations 2. Section 81.304 is amended by adding a new table entitled “Arkansas—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Arkansas—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:
    § 81.304 Arkansas. Arkansas—2010 Sulfur Dioxide NAAQS [Primary] Designated area Designation Date Type Independence County, AR 1 9/12/16 Unclassifiable. Independence County Jefferson County, AR 2 9/12/16 Unclassifiable/Attainment. Jefferson County 1 Excludes Indian country located in each area, if any, unless otherwise specified. 2 Includes Indian country located in each area, if any, unless otherwise specified.
    3. Section 81.306 is amended by adding a new table entitled “Colorado—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Colorado—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:
    § 81.306 Colorado. Colorado—2010 Sulfur Dioxide NAAQS [Primary] Designated area Designation Date Type Colorado Springs, CO 1 9/12/16 Unclassifiable. El Paso County (part) Manitou Springs Colorado Springs (and certain unincorporated areas) as follows; Areas east of the western city limits of Colorado Springs, north of the southern city limits of Colorado Springs with the addition of the area termed “Stratmoor” bounded on the south by South Academy Boulevard, west of Powers Blvd, and south of East Woodman Blvd (east of Academy Blvd. N.) and the northern city limits of Colorado Springs (west of Academy Blvd. N.) Eastern Morgan County, CO 1 9/12/16 Unclassifiable. Morgan County (part) Circle with a 12 kilometer radius centered on the Pawnee Power Plant 1 Excludes Indian country located in each area, if any, unless otherwise specified.
    4. Section 81.311 is amended by adding a new table entitled “Georgia—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Georgia—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:
    § 81.311 Georgia. Georgia—2010 Sulfur Dioxide NAAQS [Primary] Designated area Designation Date Type Juliette, GA 1 9/12/16 Unclassifiable/Attainment. Butts County Crawford County Jasper County Jones County Lamar County Monroe County Upson County 1 Includes Indian country located in each area, if any, unless otherwise specified.
    5. Section 81.312 is amended by adding a new table entitled “Hawaii—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Hawaii—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:
    § 81.312 Hawaii. Hawaii—2010 Sulfur Dioxide NAAQS [Primary] Designated area Designation Date Type Hawaii County, HI 1 9/12/16 Unclassifiable/Attainment. Hawaii County 1 Includes Indian country located in each area, if any, unless otherwise specified.
    6. Section 81.314 is amended by revising the table entitled “Illinois—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:
    § 81.314 Illinois. Illinois—2010 Sulfur Dioxide NAAQS [Primary] Designated area Designation Date Type Alton Township, IL 1 9/12/16 Nonattainment. Madison County (part) Within Alton Township: Area east of Corporal Belchik Memorial Expressway, south of East Broadway, south of Route 3, and north of Route 143 Lemont, IL1 10/4/13 Nonattainment. Cook County (part) Lemont Township Will County (part) DuPage Township and Lockport Township Pekin, IL 1 10/4/13 Nonattainment. Tazewell County (part) Cincinnati Township and Pekin Township Peoria County (part) Hollis Township Williamson County, IL 1 9/12/16 Nonattainment. Williamson County Jasper County, IL 2 9/12/16 Unclassifiable/Attainment. Jasper County Massac County, IL 2 9/12/16 Unclassifiable/Attainment. Massac County Putnam/Bureau Counties, IL 2 9/12/16 Unclassifiable/Attainment. Bureau County Putnam County Wood River Township, IL 1 9/12/16 Unclassifiable/Attainment. Madison County (part) All of Wood River Township, and the area in Chouteau Township north of Cahokia Diversion Channel 1 Excludes Indian country located in each area, if any, unless otherwise specified. 2 Includes Indian country located in each area, if any, unless otherwise specified.
    7. Section 81.315 is amended by revising the table entitled “Indiana—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:
    § 81.315 Indiana. Indiana—2010 Sulfur Dioxide NAAQS [Primary] Designated area Designation Date Type Indianapolis, IN 1 10/4/13 Nonattainment. Marion County (part) Wayne Township, Center Township, Perry Township Morgan County, IN 1 10/4/13 Nonattainment. Morgan County (part) Clay Township, Washington Township Southwest Indiana, IN 1 10/4/13 Nonattainment. Daviess County (part) Veale Township Pike County (part) Washington Township Terre Haute, IN 1 10/4/13 Nonattainment. Vigo County (part) Fayette Township, Harrison Township Gibson County, IN 2 9/12/16 Unclassifiable/attainment. Gibson County Jefferson County, IN 2 9/12/16 Unclassifiable/attainment. Jefferson County (part) Graham, Lancaster, Madison, Monroe, Republican, Shelby, and Smyrna Townships LaPorte County, IN 2 9/12/16 Unclassifiable/attainment. LaPorte County Posey County, IN 2 9/12/16 Unclassifiable/attainment. Posey County (part) Bethel, Center, Harmony, Lynn, Marrs, Robb, Robinson, and Smith Townships Spencer County, IN 2 9/12/16 Unclassifiable/attainment. Spencer County (part) Ohio Township north of UTM 4187.580 km northing, and Carter, Clay, Grass, Hammond, Harrison, and Jackson Townships 1 Excludes Indian country located in each area, if any, unless otherwise specified. 2 Includes Indian country located in each area, if any, unless otherwise specified.
    8. Section 81.316 is amended by revising the table entitled “Iowa—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:
    § 81.316 Iowa. Iowa—2010 Sulfur Dioxide NAAQS [Primary] Designated area Designation Date Type Muscatine, IA 1 10/4/13 Nonattainment. Muscatine County (part) Sections 1-3, 10-15, 22-27, 34-36 of T77N, R3W (Lake Township) Sections 1-3, 10-15, 22-27, 34-36 of T76N, R3W (Seventy-six Township) T77N, R2W (Bloomington Township) T76N, R2W (Fruitland Township) All sections except 1, 12, 13, 24, 25, 36 of T77N, R1W (Sweetland Township) Woodbury County, IA 1 9/12/16 Unclassifiable. Woodbury County Des Moines County, IA 2 9/12/16 Unclassifiable/Attainment. Des Moines County Wapello County, IA 2 9/12/16 Unclassifiable/Attainment. Wapello County 1 Excludes Indian country located in each area, if any, unless otherwise specified. 2 Includes Indian country located in each area, if any, unless otherwise specified.
    9. Section 81.317 is amended by adding a new table entitled “Kansas—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Kansas—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:
    § 81.317 Kansas. Kansas—2010 Sulfur Dioxide NAAQS [Primary] Designated area Designation Date Type Shawnee County, KS 1 9/12/16 Unclassifiable. Shawnee County Wyandotte County, KS 1 9/12/16 Unclassifiable. Wyandotte County Linn County, KS 2 9/12/16 Unclassifiable/Attainment. Linn County 1 Excludes Indian country located in each area, if any, unless otherwise specified. 2 Includes Indian country located in each area, if any, unless otherwise specified.
    10. Section 81.318 is amended by revising the table entitled “Kentucky—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:
    § 81.318 Kentucky. Kentucky—2010 Sulfur Dioxide NAAQS [Primary] Designated area Designation Date Type Campbell-Clermont Counties, KY-OH 1 10/4/13 Nonattainment. Campbell County (part) That portion of Campbell County which lies south and west of the Ohio River described as follows: Beginning at geographic coordinates 38.9735 North Latitude, 84.3017 West Longitude (NAD 1983) on the edge of the Ohio River running southwesterly to KY Highway 1566; thence continuing running southwesterly along KY Highway 1566 to KY Highway 9 (AA Highway); thence running north westerly along KY Highway 9 (AA Highway) from Hwy 1566 to Interstate 275; thence running northeasterly along Interstate 275 to Highway 2345 (John's Hill Road), Hwy 2345 to US-27, US-27 to I-275, I-275 to the Ohio River; thence running southeasterly along the Ohio River from Interstate 275 to geographic coordinates 38.9735 North Latitude, 84.3017 West Longitude (NAD 1983) Jefferson County, KY 1 10/4/13 Nonattainment. Jefferson County (part) That portion of Jefferson County compassed by the polygon with the vertices using Universal Traverse Mercator (UTM) coordinates in UTM zone 16 with datum NAD83 as follows: (1) Ethan Allen Way extended to the Ohio River at UTM Easting (m) 595738, UTM Northing 4214086 and Dixie Highway (US60 and US31W) at UTM Easting (m) 59751, UTM Northing 4212946; (2): Along Dixie Highway from UTM Easting (m) 597515, UTM Northing 4212946 to UTM Easting (m) 595859, UTM Northing 4210678; (3): Near the adjacent property lines of Louisville Gas and Electric—Mill Creek Electric Generating Station and Kosmos Cement where they join Dixie Highway at UTM Easting (m) 595859, UTM Northing 4210678 and the Ohio River at UTM Easting (m) 595326, UTM Northing 4211014; (4): Along the Ohio River from UTM Easting (m) 595326, UTM Northing 4211014 to UTM Easting (m) 595738, UTM Northing 4214086 Ohio County, KY 1 9/12/16 Unclassifiable. Ohio County Pulaski County, KY 1 9/12/16 Unclassifiable. Pulaski County 1 Excludes Indian country located in each area, if any, unless otherwise specified.
    11. Section 81.319 is amended by revising the table entitled “Louisiana—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:
    § 81.319 Louisiana. Louisiana—2010 Sulfur Dioxide NAAQS [Primary] Designated area Designation Date Type St. Bernard Parish, LA 1 10/4/13 Nonattainment. St. Bernard Parish Calcasieu Parish, LA 1 9/12/16 Unclassifiable. Calcasieu Parish De Soto Parish, LA 2 9/12/16 Unclassifiable/Attainment. De Soto Parish 1 Excludes Indian country located in each area, if any, unless otherwise specified. 2 Includes Indian country located in each area, if any, unless otherwise specified.
    12. Section 81.321 is amended by adding the table entitled “Maryland—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Maryland—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:
    § 81.321 Maryland. Maryland—2010 Sulfur Dioxide NAAQS [Primary] Designated area Designation Date Type Anne Arundel County and Baltimore County, MD 1 9/12/16 Nonattainment. Anne Arundel County (part) Portions of Anne Arundel County that are within 26.8 kilometers of Herbert A. Wagner's Unit 3 stack, which is located at 39.17765 N. latitude, 76.52752 W. longitude Baltimore County (part) Portions of Baltimore County that are within 26.8 kilometers of Herbert A. Wagner's Unit 3 stack, which is located at 39.17765 N. latitude, 76.52752 W. longitude Baltimore City, MD 2 9/12/16 Unclassifiable/Attainment. 1 Excludes Indian country located in each area, if any, unless otherwise specified. 2 Includes Indian country located in each area, if any, unless otherwise specified.
    13. Section 81.323 is amended by revising the table entitled “Michigan—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:
    § 81.323 Michigan. Michigan—2010 Sulfur Dioxide NAAQS [Primary] Designated area Designation Date Type Detroit, MI 1 10/4/13 Nonattainment. Wayne County (part) The area bounded on the east by the Michigan-Ontario border, on the south by the Wayne County-Monroe County border, on the west by Interstate 75 north to Southfield Road, Southfield Road to Interstate 94, and Interstate 94 north to Michigan Avenue, and on the north by Michigan Avenue to Woodward Avenue and a line on Woodward Avenue extended to the Michigan-Ontario border St. Clair, MI 1 9/12/16 Nonattainment. St. Clair County (part) Area defined by the St. Clair River for the eastern boundary, an extension from the St. Clair River straight west to the intersection of State Highway M-29 and St. Clair River Drive, continuing west on State Highway M-29 to Church Road to Arnold Road to County Line Road for the southern boundary, County Line Road and the Macomb/St. Clair County boundary to Stoddard Road to Wales Ridge Road for the western boundary, and Alpine Road to Fitz Road to Smith Creek Road to Range Road to Huron Avenue, extending straight east from the intersection of Huron Road and River Road to the St. Clair River for the northern boundary Bay County, MI 2 9/12/16 Unclassifiable/Attainment. Bay County Lansing, MI 2 9/12/16 Unclassifiable/Attainment. Eaton County Ingham County Marquette County, MI 2 9/12/16 Unclassifiable/Attainment. Marquette County Monroe County, MI 2 9/12/16 Unclassifiable/Attainment. Monroe County Ottawa County, MI 2 9/12/16 Unclassifiable/Attainment. Ottawa County 1 Excludes Indian country located in each area, if any, unless otherwise specified. 2 Includes Indian country located in each area, if any, unless otherwise specified.
    14. Section 81.325 is amended by adding a new table entitled “Mississippi—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Mississippi—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:
    § 81.325 Mississippi. Mississippi—2010 Sulfur Dioxide NAAQS [Primary] Designated area Designation Date Type Lamar County, MS 1 9/12/16 Unclassifiable/Attainment. Lamar County 1 Includes Indian country located in each area, if any, unless otherwise specified.
    15. Section 81.326 is amended by revising the table entitled “Missouri—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:
    § 81.326 Missouri. Missouri—2010 Sulfur Dioxide NAAQS [Primary] Designated area Designation Date Type Jackson County, MO 1 10/4/13 Nonattainment. Jackson County (part) The portion of Jackson County bounded by I-70/I-670 and the Missouri River to the north; and, to the west of I-435 to the state line separating Missouri and Kansas Jefferson County, MO 1 10/4/13 Nonattainment. Jefferson County (part) That portion within Jefferson County described by connecting the following four sets of UTM coordinates moving in a clockwise manner: (Herculaneum USGS Quadrangle), 718360.283 4250477.056, 729301.869 4250718.415, 729704.134 4236840.30, 718762.547 4236558.715 (Festus USGS Quadrangle), 718762.547 4236558.715, 729704.134 4236840.30, 730066.171 4223042.637, 719124.585 4222680.6 (Selma USGS Quadrangle), 729704.134 4236840.30, 730428.209 4236840.3, 741047.984 4223283.996, 730066.171 4223042.637 (Valmeyer USGS Quadrangle), 729301.869 4250718.415, 731474.096 4250798.868, 730428.209 4236840.3, 729704.134 4236840.30 Franklin-St. Charles Counties, MO 1 9/12/16 Unclassifiable. Franklin County (part) The eastern and western boundaries are Boles Township boundaries. The northern boundary is the Franklin County-St. Charles County Line. The southern boundary is Interstate 44 St. Charles County (part) The eastern and western boundaries are Boone Township boundaries. The northern boundary is Missouri Route D and Highway 94. The southern boundary is the Franklin County-St. Charles County Line Jackson County, MO 1 9/12/16 Unclassifiable. Jackson County (part) The northern boundary is the county line separating Jackson County from Clay and Ray Counties. The eastern boundary is the county line separating Jackson County from Lafayette County. The southern boundary is Interstates 70 and 470. The western boundary is Missouri Highway 291 Scott County, MO 2 9/12/16 Unclassifiable/Attainment. Scott County 1 Excludes Indian country located in each area, if any, unless otherwise specified. 2 Includes Indian country located in each area, if any, unless otherwise specified.
    16. Section 81.328 is amended by adding a new table entitled “Nebraska—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Nebraska—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:
    § 81.328 Nebraska. Nebraska—2010 Sulfur Dioxide NAAQS [Primary] Designated Area Designation Date Type Lancaster County, NE 1 9/12/16 Unclassifiable. Lancaster County Lincoln County, NE 2 9/12/16 Unclassifiable/Attainment. Lincoln County Otoe County, NE 2 9/12/16 Unclassifiable/Attainment. Otoe County 1 Excludes Indian country located in each area, if any, unless otherwise specified. 2 Includes Indian country located in each area, if any, unless otherwise specified.
    17. Section 81.333 is amended by adding a new table entitled “New York—2010 Sulfur Dioxide NAAQS (Primary)” following the table “New York—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:
    § 81.333 New York. New York—2010 Sulfur Dioxide NAAQS [Primary] Designated area Designation Date Type Erie-Niagara, NY 1 9/12/16 Unclassifiable/Attainment. Erie County Niagara County 1 Includes Indian country located in each area, if any, unless otherwise specified.
    18. Section 81.334 is amended by adding a new table entitled “North Carolina—2010 Sulfur Dioxide NAAQS (Primary)” following the table “North Carolina—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:
    § 81.334 North Carolina. North Carolina—2010 Sulfur Dioxide NAAQS [Primary] Designated Area Designation Date Type Brunswick County, NC 1 9/12/16 Unclassifiable. Brunswick County Lockwood Folly Township, Northwest Township, Shallotte Township. Smithville Township, Town Creek Township, Waccamaw Township 1 Excludes Indian country located in each area, if any, unless otherwise specified.
    19. Section 81.335 is amended by adding a new table entitled “North Dakota—2010 Sulfur Dioxide NAAQS (Primary)” following the table “North Dakota—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:
    § 81.335 North Dakota. North Dakota—2010 Sulfur Dioxide NAAQS [Primary] Designated Area Designation Date Type McLean County/Eastern Mercer County, ND 1 9/12/16 Unclassifiable/Attainment. McLean County Mercer County (part) Area east of CR-37/ND 31, east/north of ND 200 ALT, west of the eastern border of Mercer County/Missouri River, south of the Knife River National Historic Site. Central Mercer County, ND 1 9/12/16 Unclassifiable/Attainment. Mercer County (part) Area west of ND 49/61st Ave SW, north of Co. Rd 15/17th St. SW., east of Co. Rd 13, south and east of the town Zap, south of 8th St. SW./ND 200 1 Includes Indian country located in each area, if any, unless otherwise specified.
    20. Section 81.336 is amended by revising the table entitled “Ohio—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:
    § 81.336 Ohio. Ohio—2010 Sulfur Dioxide NAAQS [Primary] Designated Area Designation Date Type Campbell-Clermont Counties, KY-OH 1 10/4/13 Nonattainment. Clermont County (part) Pierce Township Lake County, OH 1 10/4/13 Nonattainment. Lake County Muskingum River, OH 1 10/4/13 Nonattainment. Morgan County (part) Center Township Washington County (part) Waterford Township Steubenville, OH-WV 1 10/4/13 Nonattainment. Jefferson County (part) Cross Creek Township, Steubenville Township, Warren Township, Wells Township, Steubenville City Gallia County, OH 1 9/12/16 Unclassifiable. Gallia County Miegs County (part) Bedford, Columbia, Rutland, Salem, Salisbury, and Scipio Townships Clermont County, Ohio 2 9/12/16 Unclassifiable/Attainment. Clermont County (part) Clermont County excluding Pierce Township 1 Excludes Indian country located in each area, if any, unless otherwise specified 2 Includes Indian country located in each area, if any, unless otherwise specified.
    21. Section 81.337 is amended by adding a new table entitled “Oklahoma—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Oklahoma—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:
    § 81.337 Oklahoma. Oklahoma—2010 Sulfur Dioxide NAAQS [Primary] Designated area Designation Date Type Choctaw County, OK 1 9/12/16 Unclassifiable/Attainment. Choctaw County Noble County, OK 1 9/12/16 Unclassifiable/Attainment. Noble County 1 Includes Indian country located in each area, if any, unless otherwise specified.
    22. Section 81.342 is amended by adding a new table entitled “South Dakota—2010 Sulfur Dioxide NAAQS (Primary)” following the table “South Dakota—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:
    § 81.342 South Dakota. South Dakota—2010 Sulfur Dioxide NAAQS [Primary] Designated area Designation Date Type Grant County, SD 1 9/12/16 Unclassifiable/Attainment. Grant County 1 Includes Indian country located in each area, if any, unless otherwise specified.
    23. Section 81.343 is amended by revising the table entitled “Tennessee—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:
    § 81.343 Tennessee. Tennessee—2010 Sulfur Dioxide NAAQS [Primary] Designated area Designation Date Type Sullivan County, TN 1 10/4/13 Nonattainment. Sullivan County (part) That portion of Sullivan County encompassing a circle having its center at the B-253 power house coordinates 36.5186 N.; 82.5350 W. and having a 3-kilometer radius Sumner County, TN 1 9/12/16 Unclassifiable. Sumner County 1 Excludes Indian country located in each area, if any, unless otherwise specified.
    24. Section 81.344 is amended by adding a new table entitled “Texas—2010 Sulfur Dioxide NAAQS (Primary)” following the table “Texas—1971 Sulfur Dioxide NAAQS (Primary and Secondary)” to read as follows:
    § 81.344 Texas. Texas—2010 Sulfur Dioxide NAAQS [Primary] Designated area Designation Date Type Potter County, TX 1 9/12/16 Unclassifiable. Potter County, TX Atascosa County, TX 1 9/12/16 Unclassifiable/Attainment. Atascosa County, TX Fort Bend County, TX 1 9/12/16 Unclassifiable/Attainment. Fort Bend County Goliad County, TX 1 9/12/16 Unclassifiable/Attainment. Goliad County Lamb County, TX 1 9/12/16 Unclassifiable/Attainment. Lamb County Limestone County, TX 2 9/12/16 Unclassifiable/Attainment. Limestone County McLennan County, TX 2 9/12/16 Unclassifiable/Attainment. McLennan County, TX Robertson County, TX 2 9/12/16 Unclassifiable/Attainment. Robertson County 1 Excludes Indian country located in each area, if any, unless otherwise specified. 2 Includes Indian country located in each area, if any, unless otherwise specified.
    25. Section 81.350 is amended by revising the table entitled “Wisconsin—2010 Sulfur Dioxide NAAQS (Primary)” to read as follows:
    § 81.350 Wisconsin. Wisconsin—2010 Sulfur Dioxide NAAQS [Primary] Designated area Designation Date Type Rhinelander, WI 1 10/4/13 Nonattainment. Oneida County (part) City of Rhinelander, Crescent Town, Newbold Town, Pine Lake Town, and Pelican Town Columbia County, WI 2 9/12/16 Unclassifiable/Attainment. Columbia County 1 Excludes Indian country located in each area, if any, unless otherwise specified. 2 Includes Indian country located in each area, if any, unless otherwise specified.
    [FR Doc. 2016-16348 Filed 7-11-16; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 4 [ET Docket No. 04-35; FCC 16-63] Disruptions to Communications AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    In this Report and Order, the Commission updates several of its outage reporting metrics, methodologies, and procedures for a number of providers covered in the Commission's 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 Network Outage Reporting System (NORS) with state and federal partners. The Order on Reconsideration limits outage reporting for events affecting airports to outages that impact airport critical communications, and exempts satellite and terrestrial wireless carriers from reporting outages affecting all “special offices and facilities.”

    DATES:

    The final rules are effective August 11, 2016, except 47 CFR 4.5(b) and (c), 4.7(d) and (e)(2), and 4.9 (a)(2), the second sentence in paragraph (a)(4), the second and sixth sentence in paragraph (b), (e), (f)(2), and the second sentence in paragraph (f)(4) which contain new or modified information collection requirements that have not been approved by OMB. The Federal Communications Commission will publish a document in the Federal Register announcing the effective date.

    FOR FURTHER INFORMATION CONTACT:

    Brenda D. Villanueva, Attorney Advisor, Public Safety and Homeland Security Bureau, (202) 418-7005 or [email protected]

    SUPPLEMENTARY INFORMATION:

    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.

    Synopsis of the Report and Order I. Report and Order

    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.

    A. Major Transport Facility Outages 1. Major Transport Facility Outage Metric and Threshold

    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.

    2. Simplex Outage Reporting

    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.

    B. Wireless Outage Reporting 1. Calculating the Number of Potentially Affected Users in Wireless Outages

    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.

    2. Calculating the Number of Potentially Affected Wireless Users for Wireless Outages Affecting a PSAP

    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.

    C. Call Failures—Reporting on Outages That Significantly Degrade Communications to PSAPs

    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.

    D. Special Offices and Facilities 1. Identifying Special Offices and Facilities

    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:”

    For the most part, such entities will be those enrolled in TSP priority Level 1 or Level 2. Extending the definition to all entities that are enrolled in the TSP program, irrespective of priority level, would flood the Commission with reports related to outages that do not actually impact a “special office or facility.” Although such offices and facilities unquestionably are important and should be part of the TSP program, reporting outages that affect such facilities, rather than “major military installations” or “key government facilities,” risks obfuscating truly critical outages.

    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.

    2. Section 4.13

    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.

    3. Airport Reporting Requirements

    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:

    (i) Disrupts 50 percent or more of the air traffic control links or other FAA communications links to any airport; or

    (ii) has caused an Air Route Traffic Control Center (ARTCC) or airport to lose its radar; or

    (iii) causes a loss of both primary and backup facilities at any ARTCC or airport; or

    (iv) affects an ARTCC or airport that is deemed important by the FAA as indicated by FAA inquiry to the provider's management personnel; or

    (v) has affected any ARTCC or airport and that has received any media attention of which the communications provider's reporting personnel are aware.

    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.

    4. Reporting Obligations of Satellite and Terrestrial Wireless Service Providers as to “Special Offices and Facilities”

    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.

    E. Information Sharing

    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.

    F. Cost-Benefit Analysis

    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.

    II. Order on Reconsideration A. Airport Reporting Requirements

    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.

    B. Reporting Obligations of Satellite and Terrestrial Wireless Service Providers

    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.

    III. Procedural Matters A. Accessible Formats

    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).

    B. Paperwork Reduction Act of 1995

    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.

    IV. Final Regulatory Flexibility Analysis

    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.

    A. Need for, and Objectives of, the Report and Order and Order on Reconsideration

    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.

    B. Legal Basis

    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.

    C. Summary of Significant Issues Raised by Public Comments in Response to the IRFA

    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.

    D. Description and Estimate of the Number of Small Entities to Which Rules Will Apply

    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.

    E. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities

    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.

    F. Steps Taken To Minimize the Significant Economic Impact on Small Entities, and Significant Alternatives Considered

    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.

    V. Congressional Review Act

    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).

    VI. Ordering Clauses

    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.

    List of Subjects in 47 CFR Part 4

    Airports, Communications common carriers, Communications equipment, Reporting and recordkeeping requirements, Telecommunications.

    Federal Communications Commission.

    Gloria J. Miles, Federal Register Liaison Officer, Office of the Secretary.
    Final Rules

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

    PART 4—DISRUPTIONS TO COMMUNICATIONS 1. The authority citation for part 4 is revised to read as follows: Authority:

    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 Pub. L. 73-416, 48 Stat. 1064, as amended, and section 706 of Pub. L. 104-104, 110 Stat. 56; 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, unless otherwise noted.

    2. Section 4.5 is amended by revising paragraphs (b) and (c) as follows and removing and reserving paragraph (d):
    § 4.5 Definitions of outage, special offices and facilities, and 911 special facilities.

    (b) Special offices and facilities are defined as entities enrolled in the Telecommunications Service Priority (TSP) Program at priority Levels 1 and 2, which may include, but are not limited to, major military installations, key government facilities, nuclear power plants, and those airports that are listed as current primary (PR) airports in the FAA's National Plan of Integrated Airports Systems (NPIAS) (as issued at least one calendar year prior to the outage).

    (c) A critical communications outage that potentially affects an airport is defined as an outage that:

    (1) Disrupts 50 percent or more of the air traffic control links or other FAA communications links to any airport;

    (2) Has caused an Air Route Traffic Control Center (ARTCC) or airport to lose its radar;

    (3) Causes a loss of both primary and backup facilities at any ARTCC or airport;

    (4) Affects an ARTCC or airport that is deemed important by the FAA as indicated by FAA inquiry to the provider's management personnel; or

    (5) Has affected any ARTCC or airport and that has received any media attention of which the communications provider's reporting personnel are aware.

    (d) [Reserved]

    3. Section 4.7 is amended by revising paragraphs (d) and (e)(2) to read as follows:
    § 4.7 Definition of metrics used to determine the general outage-reporting threshold criteria.

    (d) Optical Carrier 3 (OC3) minutes are defined as the mathematical result of multiplying the duration of an outage, expressed in minutes, by the number of previously operating OC3 circuits or their equivalents that were affected by the outage.

    (e) * * *

    (2) The mathematical result of multiplying the duration of an outage, expressed in minutes, by the number of end users potentially affected by the outage, for all other forms of communications. For interconnected VoIP service providers to mobile users, the number of potentially affected users should be determined by multiplying the simultaneous call capacity of the affected equipment by a concentration ratio of 8.

    4. Section 4.9 is amended by revising paragraph (a)(2), the second sentence in paragraph (a)(4), revising the second and sixth sentence in paragraph (b), revising paragraph (e), (f)(2) and the second sentence in paragraph (f)(4) to read as follows:
    § 4.9 Outage reporting requirements—threshold criteria.

    (a) * * *

    (2) Affects at least 667 OC3 minutes;

    (4) * * * (OC3 minutes and user minutes are defined in paragraphs (d) and (e) of § 4.7.) * * *

    (b) * * * Providers must report IXC and LEC tandem outages of at least 30 minutes duration in which at least 90,000 calls are blocked or at least 667 OC3-minutes are lost.* * * (OC3 minutes are defined in paragraph (d) of § 4.7.) * * *

    (e)(1) All wireless service providers shall submit electronically a Notification to the Commission within 120 minutes of discovering that they have experienced on any facilities that they own, operate, lease, or otherwise utilize, an outage of at least 30 minutes duration:

    (i) Of a Mobile Switching Center (MSC);

    (ii) That potentially affects at least 900,000 user minutes of either telephony and associated data (2nd generation or lower) service or paging service;

    (iii) That affects at least 667 OC3 minutes (as defined in § 4.7);

    (iv) That potentially affects any special offices and facilities (in accordance with paragraphs (a) through (d) of § 4.5) other than airports through direct service facility agreements; or

    (v) That potentially affects a 911 special facility (as defined in paragraph (e) of § 4.5), in which case they also shall notify, as soon as possible by telephone or other electronic means, any official who has been designated by the management of the affected 911 facility as the provider's contact person for communications outages at that facility, and they shall convey to that person all available information that may be useful to the management of the affected facility in mitigating the effects of the outage on callers to that facility.

    (2) In determining the number of users potentially affected by a failure of a switch, 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.

    (3) For providers of paging service only, a notification must be submitted if the failure of a switch for at least 30 minutes duration potentially affects at least 900,000 user-minutes.

    (4) Not later than 72 hours after discovering the outage, the provider shall submit electronically an Initial Communications Outage Report to the Commission. Not later than 30 days after discovering the outage, the provider shall submit electronically a Final Communications Outage Report to the Commission.

    (5) The Notification and Initial and Final reports shall comply with the requirements of § 4.11.

    (f) * * *

    (2) Affects at least 667 OC3 minutes;

    (4) * * * (OC3 minutes and user minutes are defined in paragraphs (d) and (e) of § 4.7.) * * *

    § 4.13 [Removed and Reserved]
    5. Section 4.13 is removed and reserved.
    [FR Doc. 2016-16274 Filed 7-8-16; 11:15 am] BILLING CODE 6712-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 1206013412-2517-02] RIN 0648-XE716 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 2016 Commercial Accountability Measure and Closure for Gulf of Mexico Greater Amberjack AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS implements accountability measures (AMs) for commercial greater amberjack in the Gulf of Mexico (Gulf) reef fish fishery for the 2016 fishing year through this temporary rule. NMFS projects commercial landings for greater amberjack, will reach the commercial annual catch target (ACT) by July 17, 2016. Therefore, NMFS closes the commercial sector for greater amberjack in the Gulf on July 17, 2016, and it will remain closed until the start of the next fishing season on January 1, 2017. This closure is necessary to protect the Gulf greater amberjack resource.

    DATES:

    This rule is effective 12:01 a.m., local time, July 17, 2016, until 12:01 a.m., local time, January 1, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Rich Malinowski, NMFS Southeast Regional Office, telephone: 727-824-5305, or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    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.

    Classification

    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).

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: July 6, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-16401 Filed 7-7-16; 4:15 pm] BILLING CODE 3510-22-P
    81 133 Tuesday, July 12, 2016 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-7419; Directorate Identifier 2015-NM-189-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 787-8 and 787-9 airplanes. This proposed AD was prompted by a report that some inboard and outboard trailing edge flap rotary actuators may have been assembled with an incorrect no-back brake rotor-stator stack sequence during manufacturing. This proposed AD would require an inspection of the inboard and outboard flap trailing edge rotary actuator for any discrepant rotary actuator. For discrepant rotary actuators, this proposed AD would require replacing the rotary actuator, or determining the flight cycles on the rotary actuator and doing related investigative and corrective actions if necessary. We are proposing this AD to detect and replace rotary actuators having incorrect assembly, which could cause accelerated unit wear that will eventually reduce braking performance. This degradation could lead to loss of no-back brake function and reduced controllability of the airplane.

    DATES:

    We must receive comments on this proposed AD by August 26, 2016.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-493-2251.

    Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-7419.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-7419; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Fnu Winarto, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6659; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-7419; Directorate Identifier 2015-NM-189-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

    Discussion

    We received a report that some inboard and outboard trailing edge flap rotary actuators may have been assembled with an incorrect no-back brake rotor-stator stack sequence during manufacturing. This condition, if not corrected, could result in accelerated unit wear that will eventually reduce braking performance. This degradation could lead to loss of no-back brake function and reduced controllability of the airplane.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin B787-81205-SB270032-00, Issue 001, dated November 3, 2015. The service information describes procedures for an inspection of the inboard and outboard flap rotary actuator for any discrepant rotary actuator, and procedures for replacing the rotary actuator, or determining the flight cycles on the rotary actuator and applicable related investigative and corrective actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

    We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

    Proposed AD Requirements

    This proposed AD would require accomplishing the actions specified in the service information described previously. For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-7419.

    “Related investigative actions” are follow-on actions that (1) are related to the primary action, and (2) are actions that further investigate the nature of any condition found. Related investigative actions in an AD could include, for example, inspections.

    “Corrective actions” are actions that correct or address any condition found. Corrective actions in an AD could include, for example, repairs.

    Costs of Compliance

    We estimate that this proposed AD affects 5 airplanes of U.S. registry.

    We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Inspection 1 work-hour × $85 per hour = $85 $0 $85 $425

    We estimate the following costs to do any necessary on-condition actions that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need this replacement:

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Check to determine flight cycles on the rotary actuator 1 work-hour × $85 per hour = $85 $0 $85 Functional test 2 work-hours × $85 per hour = $170 0 170 Replacement 2 work-hours × $85 per hour = $170 0 170
    Authority for This Rulemaking

    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.

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

    (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.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    The Proposed Amendment

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

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): The Boeing Company: Docket No. FAA-2016-7419; Directorate Identifier 2015-NM-189-AD. (a) Comments Due Date

    We must receive comments by August 26, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 787-8 and 787-9 airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin B787-81205-SB270032-00, Issue 001, dated November 3, 2015.

    (d) Subject

    Air Transport Association (ATA) of America Code 27, Flight Control Systems.

    (e) Unsafe Condition

    This AD was prompted by a report that some inboard and outboard trailing edge flap rotary actuators may have been assembled with an incorrect no-back brake rotor-stator stack sequence during manufacturing. We are issuing this AD to detect and replace rotary actuators having incorrect assembly, which could cause accelerated unit wear that will eventually reduce braking performance. This degradation could lead to loss of no-back brake function and reduced controllability of the airplane.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Inspection and Other Actions

    Within 60 months after the effective date of this AD, do an inspection of the inboard and outboard trailing edge flap rotary actuator for any discrepant rotary actuator, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB270032-00, Issue 001, dated November 3, 2015. If any discrepant rotary actuator is found, within 60 months after the effective date of this AD, do the actions specified in paragraph (g)(1) or (g)(2) of this AD, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB270032-00, Issue 001, dated November 3, 2015.

    (1) Replace the discrepant rotary actuator.

    (2) Check the maintenance records to determine the flight cycles of each discrepant rotary actuator and, within 60 months after the effective date of this AD, do all applicable related investigative and corrective actions.

    (h) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (i)(1) of this AD. Information may be emailed to: [email protected]

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

    (4) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (h)(4)(i) and (h)(4)(ii) of this AD apply.

    (i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

    (ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.

    (i) Related Information

    (1) For more information about this AD, contact Fnu Winarto, Aerospace Engineer, Systems and Equipment Branch, ANM-130S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6659; fax: 425-917-6590; email: [email protected]

    (2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on June 28, 2016. John P. Piccola, Jr., Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-16323 Filed 7-11-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-6544; Directorate Identifier 2014-NM-198-AD] RIN 2120-AA64 Airworthiness Directives; Saab AB, Saab Aeronautics (Formerly Known as Saab AB, Saab Aerosystems) Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Supplemental notice of proposed rulemaking (NPRM); reopening of comment period.

    SUMMARY:

    We are revising an earlier proposed airworthiness directive (AD) for certain Saab AB, Saab Aeronautics Model 340A (SAAB/SF340A) and SAAB 340B airplanes. The NPRM proposed to supersede AD 2012-24-06. AD 2012-24-06 currently requires replacing the stall warning computer (SWC) with a new SWC that provides an artificial stall warning in icing conditions, and modifying the airplane for the replacement of the SWC. The NPRM was prompted by a determination that airplanes with certain modifications were excluded from the applicability in AD 2012-24-06, and are affected by the identified unsafe condition; and the SWC required by AD 2012-24-06 contained erroneous logic. This action revises the NPRM by reducing the compliance time for replacing the SWCs. We are proposing this supplemental NPRM (SNPRM) to prevent natural stall events during operation in icing conditions, which could result in loss of control of the airplane. Since this compliance time reduction imposes an additional burden to operators, we are reopening the comment period to allow the public the chance to comment on these proposed changes.

    DATES:

    We must receive comments on this SNPRM by August 26, 2016.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-493-2251.

    Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    Hand Delivery: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this SNPRM, contact Saab AB, Saab Aeronautics, SE-581 88, Linköping, Sweden; telephone +46 13 18 5591; fax +46 13 18 4874; email [email protected]; Internet http://www.saabgroup.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-6544; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1112; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2015-6544; Directorate Identifier 2014-NM-198-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Saab AB, Saab Aeronautics Model 340A (SAAB/SF340A) and SAAB 340B airplanes. The NPRM published in the Federal Register on December 17, 2015 (80 FR 78699) (“the NPRM”). The NPRM proposed to supersede AD 2012-24-06, Amendment 39-17276 (77 FR 73279, December 10, 2012) (“AD 2012-24-06”). AD 2012-24-06 currently requires replacing the SWC with a new SWC that provides an artificial stall warning in icing conditions, and modifying the airplane for the replacement of the SWC. The NPRM was prompted by a determination that airplanes with certain modifications were excluded from the applicability in AD 2012-24-06, and are affected by the identified unsafe condition; and the SWC required by AD 2012-24-06 contained erroneous logic. The NPRM proposed to add airplanes to the applicability, and would add requirements to replace the existing SWCs with new, improved SWCs and modify the airplane for the new replacement of the SWC.

    Actions Since Previous NPRM Was Issued

    Since we issued the NPRM, we have determined that the compliance time for replacing the SWCs must be reduced to ensure the unsafe condition is addressed prior to the beginning of icing season after publication of the AD. We have determined that parts are available to support the reduced compliance time.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0218, dated September 29, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition on certain Saab AB, Saab Aeronautics Model 340A (SAAB/SF340A) and SAAB 340B airplanes. The MCAI states:

    A few natural stall events, specifically when operating in icing conditions, have been experienced on SAAB 340 series aeroplanes, without receiving a prior stall warning.

    This condition, if not corrected, could result in loss of control of the aeroplane.

    To address this potential unsafe condition, SAAB developed a modified stall warning system, incorporating improved stall warning logic, and issued Service Bulletin (SB) 340-27-098 and SB 340-27-099, providing instructions to replace the Stall Warning Computer (SWC) with a new SWC, and instructions to activate the new SWC. The new system included stall warning curves optimized for operation in icing conditions, which are activated by selection of Engine Anti-Ice.

    Consequently, EASA issued AD 2011-0219 [http://ad.easa.europa.eu/ad/2011-0219, which corresponds to FAA AD 2012-24-06] to require installation of the improved SWC.

    After that [EASA] AD was issued, in-service experience with the improved stall warning system revealed cases of premature stall warning activation during the take-off phase. In numerous recorded cases, the onset of stall warning occurred without the 6 minute delay after weight off wheels.

    This condition, if not corrected, could lead to premature stick shaker activation and consequent increase in pilot workload during the take-off phase, possibly resulting in reduced control of the aeroplane.

    To correct this unsafe condition, EASA issued AD 2013-0254 [http://ad.easa.europa.eu/ad/2013-0254] retaining the requirements of EASA AD 2011-0219, which was superseded, to require deactivation of the ice speed curves in the improved SWC on SAAB 340 aeroplanes, in accordance with SAAB SB 340-27-116.

    Since EASA AD 2013-0254 was issued, SAAB developed a technical solution to eliminate the premature activation of the stall warning ice curves and issued SB 340-27-120 (modification of the existing Stall Warning System installation), SB 340-27-121 (activation of improved SWC for aeroplanes with a basic wing tip) and SB 340-27-122 (activation of improved SWC for aeroplanes with an extended wing tip). SAAB SB 340-27-120 provides modification and installation instructions valid for pre- and post-SB 340-27-097, 340-27-098, SB 340-27-099 and SB 340-27-116 aeroplanes. For aeroplanes modified in accordance with SAAB AB mod. No. 2650 and/or mod. No. 2859 which are no longer registered in Canada, SAAB AB issued SAAB AB SB 340-27-109 to provide modification and installation instructions to remove the ice speed curve function.

    For the reasons described above, this [EASA] AD retains the requirements of EASA AD 2013-0254, which is superseded, and requires modification of the Stall Warning and Identification System and replacement of the SWC with an improved unit.

    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-2015-6544.

    Related Service Information Under 1 CFR Part 51

    Saab AB, Saab Aeronautics has issued the following service information:

    • Saab Service Bulletin 340-27-109, dated April 14, 2014.

    • Saab Service Bulletin 340-27-116, dated October 18, 2013.

    • Saab Service Bulletin 340-27-120, dated July 11, 2014.

    • Saab Service Bulletin 340-27-121, dated July 11, 2014.

    • Saab Service Bulletin 340-27-122, dated July 11, 2014.

    The service information describes procedures for deactivating the stall warning speed curves in the SWCs for certain airplanes; replacing the existing SWCs with new, improved SWCs; and modifying the airplane for the new replacement of the SWC. 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.

    Comments

    We gave the public the opportunity to participate in developing this proposed AD. We considered the comments received.

    Request To Reduce Compliance Time

    Saab asked that the compliance time in paragraph (h) of the proposed AD (in the NPRM) for replacement of the SWC be reduced from 12 to 3 months. Saab stated that a global alternative method of compliance (AMOC) was issued by the FAA on September 4, 2014, with a compliance time of 18 months; therefore, operators should have scheduled replacement of the SWCs after the AMOC was issued. Saab also stated that the MCAI required compliance within 18 months after September 29, 2014, and that time has expired. Saab added that reducing the compliance time to 3 months is more in line with the MCAI. In addition, Saab noted that all operators have ordered replacement SWCs, and Saab has those parts in stock and ready for delivery.

    We agree with the commenter's request to reduce the compliance time, for the reasons provided. We also note that reducing the compliance time will ensure that new SWCs are installed before the icing season begins. We have changed the compliance time in paragraph (h) of this proposed AD from 12 to 3 months accordingly.

    Request To Correct Email Address

    Saab asked that the Saab email address in the proposed AD (in the NPRM) be corrected to specify the following: [email protected]

    We agree with the commenter's request. The email address for Model SAAB 2000 airplanes was inadvertently cited in the NPRM. We have corrected the address in the ADDRESSES section and in paragraph (l)(2) of this proposed AD.

    Request To Use Later Revisions of Service Information

    Silver Airways asked if we could include subsequent revisions of the referenced service information for AD 2012-24-06.

    We do not agree with the commenter's request because this proposed AD does not require the service information referenced in AD 2012-24-06. This proposed AD does refer to the latest available service information for the proposed actions. Referring to a specific service bulletin in an AD and using the phrase “or later FAA-approved revisions” violates Office of the Federal Register regulations for approving materials that are incorporated by reference. However, operators may request approval to use a later revision of the referenced service information as an AMOC under the provisions of paragraph (k)(1) of this proposed AD. We have not changed this final rule regarding this issue.

    FAA's Determination and Requirements of This SNPRM

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

    Certain changes described above expand the scope of the NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on this SNPRM.

    Costs of Compliance

    We estimate that this SNPRM affects 105 airplanes of U.S. registry.

    The actions that are required by AD 2012-24-06, and retained in this SNPRM, take about 78 work-hours per product, at an average labor rate of $85 per work-hour. Required parts cost about $33,000 per product. Based on these figures, the estimated cost of the actions that are required by AD 2012-24-06 is $39,630 per product.

    The new requirement of this SNPRM adds no additional economic burden.

    Authority for This Rulemaking

    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.

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

    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.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    The Proposed Amendment

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

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2012-24-06, Amendment 39-17276 (77 FR 73279, December 10, 2012), and adding the following new AD: Saab AB, Saab Aeronautics: Docket No. FAA-2015-6544; Directorate Identifier 2014-NM-198-AD. (a) Comments Due Date

    We must receive comments by August 26, 2016.

    (b) Affected ADs

    This AD replaces AD 2012-24-06, Amendment 39-17276 (77 FR 73279, December 10, 2012) (“AD 2012-24-06”).

    (c) Applicability

    This AD applies to Saab AB, Saab Aeronautics (formerly known as Saab AB, Saab Aerosystems) Model 340A (SAAB/SF340A) and SAAB 340B airplanes, certificated in any category, as identified in paragraphs (c)(1) and (c)(2) of this AD.

    (1) Model 340A (SAAB/SF340A) airplanes, serial numbers 004 through 159 inclusive.

    (2) Model SAAB 340B airplanes, serial numbers 160 through 459 inclusive, except serial numbers 170, 342, 362, 363, 367, 372, 379, 385, 395, 405, 409, 431, 441, and 455.

    (d) Subject

    Air Transport Association (ATA) of America Code 27, Flight Controls.

    (e) Reason

    This AD was prompted by a determination that airplanes with certain modifications were excluded from the applicability in AD 2012-24-06, and are affected by the identified unsafe condition; and the stall warning computer (SWC) required by AD 2012-24-06 contained erroneous logic. We are issuing this AD to prevent natural stall events during operation in icing conditions, which could result in loss of control of the airplane.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Deactivation of Stall Speed Curves

    For airplanes identified in paragraphs (g)(1) and (g)(2) of this AD: Within 30 days after the effective date of this AD, do the deactivation specified in paragraph (g)(1) or (g)(2) of this AD, as applicable to airplane configuration, in accordance with the Accomplishment Instructions of Saab Service Bulletin 340-27-116, dated October 18, 2013.

    (1) For airplanes with a basic wing tip that has been modified using Saab Service Bulletin 340-27-098: Deactivate the stall speed curves in the SWC having part number (P/N) 0020AK6.

    (2) For airplanes with an extended wing tip that has been modified using Saab Service Bulletin 340-27-099: Deactivate the stall speed curves in the SWC having P/N 0020AK7.

    (h) Replacement of SWCs

    Within 3 months after the effective date of this AD: Do the replacement specified in paragraph (h)(1) or (h)(2) of this AD, as applicable.

    (1) For airplanes with basic wing tips: Replace all SWCs with new, improved SWCs having P/N 0020AK6-1, in accordance with the Accomplishment Instructions of Saab Service Bulletin 340-27-121, dated July 11, 2014.

    (2) For airplanes with extended wing tips: Replace all SWCs with new, improved SWCs having P/N 0020AK7-1, in accordance with the Accomplishment Instructions of Saab Service Bulletin 340-27-122, dated July 11, 2014.

    (i) Concurrent Modification

    Before or concurrently with the accomplishment of the applicable requirements of paragraph (h) of this AD, do the actions specified in paragraph (i)(1) or (i)(2) of this AD, as applicable to airplane configuration.

    (1) For airplanes on which either Saab AB Mod No. 2650 or Mod No. 2859 is not installed: Modify the stall warning and identification system, in accordance with the Accomplishment Instructions of Saab Service Bulletin 340-27-120, dated July 11, 2014.

    (2) For airplanes on which either Saab AB Mod No. 2650 or Mod No. 2859 is installed, or on which both mods are installed: Modify the stall warning and identification system, in accordance with the Accomplishment Instructions of Saab Service Bulletin 340-27-109, dated April 14, 2014.

    (j) Parts Installation Prohibitions

    After the replacement required by paragraph (h) of this AD, no person may install any SWC having P/N 0020AK, 0020AK1, 0020AK2, 0020AK4, 0020AK6, 0020AK7, or 0020AK3 MOD 1, on any airplane.

    (k) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1112; fax 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Saab AB, Saab Aeronautics' EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (l) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2014-0218, dated September 29, 2014, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-6544.

    (2) For service information identified in this AD, contact Saab AB, Saab Aeronautics, SE-581 88, Linköping, Sweden; telephone +46 13 18 5591; fax +46 13 18 4874; email [email protected]; Internet http://www.saabgroup.com. You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on June 23, 2016. Dorr M. Anderson, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-15927 Filed 7-11-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-7426; Directorate Identifier 2015-NM-199-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 737-100, -200, and -200C series airplanes. This proposed AD is intended to complete certain mandated programs intended to support the airplane reaching its limit of validity (LOV) of the engineering data that support the established structural maintenance program. This proposed AD would require repetitive detailed, high frequency eddy current (HFEC), and ultrasonic inspections of the center section rear spar upper clevis lugs and horizontal stabilizer rear spar upper lugs, as applicable, for any cracking, and related investigative and corrective actions if necessary. For certain airplanes, this proposed AD would require replacement of the center section rear spar upper chord with a new part and a serviceable center section assembly. This proposed AD would also require repetitive HFEC and fluorescent dye penetrant inspections of the center section for cracking of the front and rear spar upper clevis lugs or horizontal stabilizer front and rear spar upper lugs, and related investigative and corrective actions if necessary. We are proposing this AD to detect and correct cracking in the rear spar upper clevis lugs of the center section, and in the rear spar upper lugs of the horizontal stabilizer which could result in the loss of structural integrity and controllability of the airplane.

    DATES:

    We must receive comments on this proposed AD by August 26, 2016.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-493-2251.

    Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone: 206-544-5000, extension 1; fax: 206-766-5680; Internet: https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-7426.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-7426; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Payman Soltani, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5313; fax: 562-627-5210; email: [email protected].

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-7426; Directorate Identifier 2015-NM-199-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

    Discussion

    As described in FAA Advisory Circular 120-104 (http://www.faa.gov/documentLibrary/media/Advisory_Circular/120-104.pdf), several programs have been developed to support initiatives that will ensure the continued airworthiness of aging airplane structure. The last element of those initiatives is the requirement to establish a LOV of the engineering data that support the structural maintenance program under 14 CFR 26.21. This proposed AD is the result of an assessment of the previously established programs by the DAH during the process of establishing the LOV for the affected airplanes. The actions specified in this proposed AD are necessary to complete certain programs to ensure the continued airworthiness of aging airplane structure and to support an airplane reaching its LOV.

    This proposed AD is intended to complete certain mandated programs intended to support the airplane reaching its LOV of the engineering data that support the established structural maintenance program. An operator detected a cracked center section at the rear spar upper chord clevis lug. This condition, if not corrected, could result in cracking in the rear spar clevis lugs of the horizontal stabilizer center section, which could result in loss of structural integrity and controllability of the airplane.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015. The service information describes procedures for repetitive detailed, HFEC, and ultrasonic inspections of the center section rear spar upper clevis lugs and rear spar upper lugs of the horizontal stabilizer; HFEC and fluorescent dye penetrant inspections for cracking in the front and rear spar upper clevis lugs of the center section and the front and rear spar upper lugs of the horizontal stabilizer. For certain airplanes, the service information describes procedures for replacement of the center section rear spar upper chord with a new part and replacing the center section with a serviceable center section assembly, or installing bushings and sleeves as applicable. 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.

    FAA's Determination

    We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

    Proposed AD Requirements

    This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between This Proposed AD and the Service Information.” For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-7426.

    The phrase “related investigative actions” is used in this NPRM. Related investigative actions are follow-on actions that (1) are related to the primary action, and (2) further investigate the nature of any condition found. Related investigative actions in an AD could include, for example, inspections.

    The phrase “corrective actions” is also used in this NPRM. Corrective actions are actions that correct or address any condition found. Corrective actions in an AD could include, for example, repairs.

    Differences Between This Proposed AD and the Service Information

    Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015, specifies to contact the manufacturer for certain instructions, but this proposed AD would require accomplishment of repair methods, modification deviations, and alteration deviations in one of the following ways:

    • In accordance with a method that we approve; or

    • Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.

    Where Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015, specifies a compliance time or repeat interval as “Horizontal Stabilizer Center Section flight cycles” or “Horizontal Stabilizer flight cycles,” this AD requires compliance for the corresponding time or repeat interval in airplane flight cycles.

    Costs of Compliance

    We estimate that this proposed AD affects 84 airplanes of U.S. registry.

    We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S. operators Repetitive detailed, HFEC, and ultrasonic inspections 9 work-hours × $85 per hour = $765 per inspection cycle $0 $765 per inspection cycle $64,260 per inspection cycle. Repetitive HFEC and fluorescent dye penetrant inspections 118 work-hours × $85 per hour = $10,030 per inspection cycle 0 $10,030 per inspection cycle $842,520 per inspection cycle. Replacement Up to 252 work-hours × $85 per hour = $21,420 per inspection cycle 25,000 Up to $46,420 per inspection cycle Up to $3,899,280 per inspection cycle.

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

    On-Condition Costs Action Labor cost Parts cost Cost per product Bolt and Bushing Removal/Inspection, Fabrication, and Installation 101 work-hours × $85 per hour = $8,585 $0 $8,585. Repair and replacement Up to 252 work-hours × $85 per hour = $21,420 per inspection cycle 25,000 Up to $46,420 per inspection cycle. Authority for This Rulemaking

    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.

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

    (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.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    The Proposed Amendment

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

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): The Boeing Company: Docket No. FAA-2016-7426; Directorate Identifier 2015-NM-199-AD. (a) Comments Due Date

    We must receive comments by August 26, 2016.

    (b) Affected ADs

    This AD affects AD 84-23-05, Amendment 39-4949 (49 FR 45744, November 20, 1984); and AD 86-12-05, Amendment 39-5321 (51 FR 18771, May 22, 1986).

    (c) Applicability

    This AD applies to The Boeing Company Model 737-100, -200, and -200C series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015.

    (d) Subject

    Air Transport Association (ATA) of America Code 55, Stabilizers.

    (e) Unsafe Condition

    This proposed AD is intended to complete certain mandated programs intended to support the airplane reaching its limit of validity (LOV) of the engineering data that support the established structural maintenance program. We are issuing this AD to detect and correct cracking in the rear spar upper clevis lugs of the center section, and in the rear spar upper lugs of the horizontal stabilizer which could result in the loss of structural integrity and controllability of the airplane.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Inspections, Related Investigative and Corrective Actions (Service Information Tables 1 and 3)

    At the applicable time specified in table 1 or table 3 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015, except as specified in paragraph (o) of this AD: Do detailed, high frequency eddy current (HFEC), and ultrasonic inspections of the center section rear spar upper clevis lugs for any cracking, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015; except as specified in paragraph (p) of this AD. Do all related investigative and corrective actions before further flight. Repeat the inspections thereafter at the applicable times specified in table 1 or table 3 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015.

    (h) Replacement (Service Information Table 1)

    For airplanes identified as Group 1, Configuration 1, in Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015: At the applicable time specified in table 1 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015, except as specified in paragraph (o) of this AD, replace the center section rear upper chord with a new part or replace the center section with a serviceable center section assembly, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015.

    (i) Repetitive Post-Replacement Inspections, Related Investigative and Corrective Actions (Service Information Table 2)

    For airplanes identified as Group 1, Configuration 1, in Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015, with a new or serviceable 0.932-inch-thick center section rear spar upper chord: At the applicable time specified in table 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015, except as specified in paragraph (o) of this AD, do detailed, HFEC, and ultrasonic inspections of the center section rear spar upper chord clevis lugs for any cracking, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015; except as specified in paragraph (p) of this AD. Do all related investigative and corrective actions before further flight. Repeat the inspections thereafter at the applicable times specified in table 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015.

    (j) Post-Replacement Inspections, Related Investigative and Corrective Actions (Service Information Table 4)

    For airplanes on which the center section rear spar upper chord was last replaced with a new part or serviceable part: Within the applicable times specified in table 4 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015, except as specified in paragraph (o) of this AD, do detailed, HFEC, and ultrasonic inspections of the center section rear spar upper chord clevis lugs for any cracking, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015; except as specified in paragraph (p) of this AD. Do all related investigative and corrective actions before further flight. Repeat the inspections thereafter at the applicable times specified in table 4 of 1.E., “Compliance” of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015.

    (k) Repetitive Inspections, Related Investigative and Corrective Actions of the Horizontal Stabilizer (Service Information Table 5)

    Within the applicable time specified in table 5 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015, except as specified in paragraph (o) of this AD, do detailed, HFEC, and ultrasonic inspections of the rear spar upper lugs of the horizontal stabilizer for any cracking, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015; except as specified in paragraph (p) of this AD. Do all related investigative and corrective actions before further flight. Repeat the inspections thereafter at the applicable times specified in table 5 of 1.E., “Compliance” of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015.

    (l) Post Replacement Inspections, Related Investigative and Corrective Actions (Service Information Table 6)

    For airplanes with a replaced horizontal stabilizer with a new or serviceable part, within the applicable times specified in table 6 of 1.E., “Compliance” of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015, except as specified in paragraph (o) of this AD: Do a detailed, HFEC, and ultrasonic inspection of the rear spar upper lugs of the horizontal stabilizer for any cracking, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015; except as specified in paragraph (p) of this AD. Do all related investigative and corrective actions before further flight. Repeat the inspections thereafter at the applicable times specified in table 6 of 1.E., “Compliance” of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015.

    (m) Scheduled Inspections, Related Investigative and Corrective Actions (Service Information Table 7)

    Within the applicable times specified in table 7 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015, except as specified in paragraph (o) of this AD: Do HFEC and fluorescent dye penetrant inspections for cracking in the front and rear spar upper clevis lugs of the center section and front and rear spar upper lugs of the horizontal stabilizer, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015; except as specified in paragraph (p) of this AD. Do all related investigative and corrective actions before further flight. Repeat the inspections thereafter at the applicable times specified in table 7 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015.

    (n) Post Scheduled Inspections, Related Investigative and Corrective Actions (Service Information Table 8)

    For airplanes on which the center section rear spar upper chord or horizontal stabilizer rear spar upper chord has been replaced: Within the applicable time specified in table 8 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015, except as specified in paragraph (o) of this AD: Do HFEC and fluorescent dye penetrant inspections for cracking in the front and rear spar upper clevis lugs of the center section or front and rear spar upper lugs of the horizontal stabilizer, as applicable, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015; except as specified in paragraph (p) of this AD. Do all related investigative and corrective actions before further flight. Repeat the inspections thereafter at the applicable times specified in table 8 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015.

    (o) Exceptions to the Service Information: Compliance Times

    (1) Where Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015, specifies a compliance time “after the Revision 2 date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (2) Where Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015, specifies a compliance time or repeat interval as “Horizontal Stabilizer Center Section flight cycles” or “Horizontal Stabilizer flight cycles,” this AD requires compliance for the corresponding time or repeat interval in airplane flight cycles.

    (p) Exception to the Service Information: Repair Compliance Method

    If any cracking of the lug is found during any inspection required by this AD, and Boeing Alert Service Bulletin 737-55A1033, Revision 2, dated August 7, 2015, specifies to contact Boeing for appropriate action: Before further flight, repair the lug using a method approved in accordance with the procedures specified in paragraph (r) of this AD.

    (q) Terminating Actions

    (1) For Model 737-100, -200, and -200C series airplanes: Accomplishment of the inspections specified in paragraph (g) of this AD terminates the requirements of paragraph A. of AD 84-23-05, Amendment 39-4949 (49 FR 45744, November 20, 1984).

    (2) For Model 737-200 and -200C series airplanes: Accomplishment of the inspections specified in paragraph (m) and (n) of this AD terminates the requirements of paragraphs A. and B. of AD 86-12-05, Amendment 39-5321 (51 FR 18771, May 22, 1986).

    (r) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Los Angeles Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (s)(1) of this AD.

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane and the approval must specifically refer to this AD.

    (s) Related Information

    (1) For more information about this AD, contact Payman Soltani, Aerospace Engineer, Airframe Branch, ANM-120L, FAA, Los Angeles ACO, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5313; fax: 562-627-5210; email: [email protected].

    (2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone: 206-544-5000, extension 1; fax: 206-766-5680; Internet: https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on June 28, 2016. John P. Piccola, Jr., Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-16322 Filed 7-11-16; 8:45 am] BILLING CODE 4910-13-P
    SOCIAL SECURITY ADMINISTRATION 20 CFR Parts 404, 405 and 416 [Docket No. SSA-2014-0052] RIN 0960-AH71 Ensuring Program Uniformity at the Hearing and Appeals Council Levels of the Administrative Review Process AGENCY:

    Social Security Administration.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to revise our rules so that more of our procedures at the administrative law judge (ALJ) and Appeals Council levels of our administrative review process are consistent nationwide. We anticipate that these nationally consistent procedures will enable us to administer our disability programs more efficiently and better serve the public.

    DATES:

    To ensure that your comments are considered, we must receive them no later than August 11, 2016.

    ADDRESSES:

    You may submit comments by any one of three methods—Internet, fax, or mail. Do not submit the same comments multiple times or by more than one method. Regardless of which method you choose, please state that your comments refer to Docket No. SSA-2014-0052 so that we may associate your comments with the correct rule.

    Caution: You should be careful to include in your comments only information that you wish to make publicly available. We strongly urge you not to include in your comments any personal information, such as Social Security numbers or medical information.

    1. Internet: We strongly recommend that you submit your comments via the Internet. Please visit the Federal eRulemaking portal at http://www.regulations.gov. Use the “Search” function to find docket number SSA-2014-0052. The system will issue a tracking number to confirm your submission. You will not be able to view your comment immediately because we must post each comment manually. It may take up to a week for your comment to be viewable.

    2. Fax: Fax comments to (410) 966-2830.

    3. Mail: Mail your comments to the Office of Regulations and Reports Clearance, Social Security Administration, 3100 West High Rise Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.

    Comments are available for public viewing on the Federal eRulemaking portal at http://www.regulations.gov or in person, during regular business hours, by arranging with the contact person identified below.

    FOR FURTHER INFORMATION CONTACT:

    Maren Weight, Office of Appellate Operations, Social Security Administration, 5107 Leesburg Pike, Falls Church, VA 22041, (703) 605-7100. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or visit our Internet site, Social Security Online, at http://www.socialsecurity.gov.

    SUPPLEMENTARY INFORMATION:

    We propose revisions to:

    (1) The time-frame for notifying claimants of a hearing date;

    (2) the information in our hearing notices;

    (3) the period when we require claimants to inform us about or submit written evidence, written statements, objections to the issues, and subpoena requests;

    (4) what constitutes the official record; and

    (5) the manner in which the Appeals Council considers additional evidence.

    Background

    Over the last few years, we have revised many of our regulations to bolster program integrity and clarify our policy, procedures, and expectations. For example, on June 25, 2014, we made changes to when a claimant must object to appearing at a hearing by video teleconferencing.1 As another example, we published a final rule on March 20, 2015, that clarified a claimant's duty to inform us about or submit all evidence that relates to whether or not he or she is blind or disabled, subject to two exceptions for privileged communications.2 We made these and other changes specifically to strengthen the integrity of our programs.

    1 79 FR 35926.

    2 See 80 FR 14828, 20 CFR 404.1512, 416.912.

    As we explained in the final rule on March 20, 2015, “we believe program integrity requires us to obtain complete medical evidence (favorable or unfavorable) in disability claims.” 3 Although that statement refers to medical evidence, we reiterate in this proposed rule that a complete evidentiary record is necessary for us to make an informed and accurate disability determination or decision, and bolsters program integrity by improving consistency in the adjudication of claims at all levels of the administrative review process. As we look ahead, we continue to evaluate our regulatory and sub-regulatory policies to assess where we can make changes to improve accuracy and efficiency in our administrative review processes. To that end, we are now proposing the changes outlined below.

    3 80 FR at 14833.

    As we discuss in detail below, we have now had time to implement helpful systems changes and review a study performed by the Administrative Conference of the United States (ACUS), in which ACUS evaluated available data and considered various internal and external stakeholder opinions about the impact of our Part 405 rules.4 We are also facing an unprecedented challenge in the workloads pending at our Office of Disability Adjudication and Review (ODAR). With more than a million people currently waiting for a hearing decision, we cannot afford to continue postponing hearing proceedings because the record is not complete at the time of the hearing. Facing this unprecedented workload challenge requires that we consider all options to ensure we have a complete evidentiary record, provide timely and accurate service, and improve how we perform all administrative tasks. We expect these proposed changes will help us accomplish all three objectives.

    4 See Report from Office of the Chairman of the Administrative Conference of the United States, SSA Disability Benefits Adjudication Process: Assessing the Impact of the Region 1 Pilot Program (Dec. 23, 2013) (“ACUS Report”), available at http://acus.gov/sites/default/files/documents/Assessing%20Impact%20of%20Region%20I%20Pilot%20Program%20Report_12_23_13_final.pdf. For the specific data reviewed and opinions collected by ACUS, see Appendix to SSA Disability Benefits Adjudication Process: Assessing the Impact of the Region I Pilot Program (Dec. 23, 2013) (“ACUS Report Appendix”), available at https://www.acus.gov/sites/default/files/documents/Appendix%20to%20Assessing%20Impact%20of%20Region%20I%20Pilot%20Program%20Report_12_23_13_final.pdf.

    More specifically, in the last decade, we have made significant progress in modernizing our business processes for hearings-level cases and enhancing our use of technology. For example, we now process most disability claims electronically, which allows us to transfer workloads around the country more easily. In addition, we have established five National Hearing Centers (NHC) that process only electronic cases and conduct all hearings via video teleconferencing. The NHCs assist hearing offices that have larger workloads and longer wait times for hearings. Our ability to transfer cases electronically out of a region to an NHC, or to another hearing office with a smaller workload, allows us to serve claimants more efficiently.

    As we have increased our use of electronic case files, we also had an opportunity to re-evaluate how we receive and process evidence. Previously, claimants and representatives would mail, fax, or hand-deliver evidence to us, and we would enter the evidence into the case file manually. While these options remain available, improvements in technology now permit claimants and representatives to submit evidence through our Electronic Records Express (ERE) system, which uploads evidence directly into the claimant's electronic case file. Many representatives have also registered to use the Appointed Representative Suite of Services (ARS), which allows them to remotely view the claimant's electronic case file online and verify in real time that we received evidence. Representatives who access the case file through ARS can also view all of the other evidence in the file to verify that the record is complete.5

    5 Effective August 16, 2016, representatives who request direct payment of a fee in a case are generally required to access a case file through ARS. See 81 FR 22697 (2016).

    We are also improving how we receive electronic evidence from medical providers. Our Health Information Technology (HIT) program allows us to request and receive a claimant's medical records through an electronic submission. Although we currently use HIT in only a small number of cases, we anticipate that we will expand the HIT program and make use of other technological advances that will make it easier and faster for us to obtain medical records. We expect these enhancements in how we receive evidence will improve our efficiency and ensure consistency in processing claims at the hearings and Appeals Council levels of our administrative review process.

    Our progress in the areas discussed above can be undermined if our rules are not nationally consistent. At the beginning of 2006, the hearings and Appeals Council levels of our administrative review process generally operated under nationally consistent rules, set forth in 20 CFR parts 404 and 416. However, on March 31, 2006, we published a final rule that implemented a number of changes to our disability determination process.6 These changes, which we referred to collectively as the Disability Service Improvement (DSI) process, were primarily set forth in Part 405 of our regulations. As we explained in the preamble to our final rule, we selected Boston 7 as the first region to implement the DSI process. Over the last decade, we have revised or rescinded many portions of the Part 405 regulations.8 However, certain aspects of DSI processing remain at the hearings and Appeals Council levels.

    6 See 71 FR 16424.

    7 The Boston region consists of the States of Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.

    8 See 73 FR 2411, corrected at 73 FR 10381, and 76 FR 24802.

    For example, our current Part 405 rules require us to provide claimants with notice of their hearings at least 75 days in advance of the hearing.9 By contrast, our current Part 404 and Part 416 rules require us to provide claimants with notice of their hearings at least 20 days in advance of the hearing.10 In addition, under Part 405, claimants are required to submit any written evidence no later than 5 business days before the date of the scheduled hearing, with a few exceptions.11 Conversely, under Parts 404 and 416, claimants can submit evidence up to and on the date of the hearing, or even after a hearing.12 Additionally, Part 405 contains other processing differences, including the time limit of at least 10 days prior to the hearing to submit subpoena requests versus Parts 404 and 416, which contains a time limit of 5 days prior to the hearing to submit subpoena requests. Lastly, Part 405 requires the submission of objections to the issues at the hearing 5 days prior to the hearing versus Parts 404 and 416, which requires the submission of objections at the earliest possible opportunity.13

    9 20 CFR 405.315(a).

    10 20 CFR 404.938(a), 416.1438(a)

    11 20 CFR 405.331(a).

    12 Our regulations provide that “[y]ou should submit information or evidence . . . or any summary of the evidence to the administrative law judge with the request for hearing or within 10 days after filing the request, if possible.” 20 CFR 404.935, 416.1335. However, as noted in our subregulatory instructions, we accept additional evidence that a claimant submits at or after a hearing, until we issue a hearing decision. See, e.g., Hearings, Appeals, and Litigation Law manual (HALLEX) I-2-6-58 (available at https://www.ssa.gov/OP_Home/hallex/I-02/I-2-6-58.html) and I-2-7-20 (available at https://www.ssa.gov/OP_Home/hallex/I-02/I-2-7-20.html). The circumstances in which the Appeals Council will consider additional evidence are set forth in 20 CFR 404.976(b) and 416.1476(b).

    13 Cf. 20 CFR 404.950(d)(2), 416.1450(d)(2) with 20 CFR 405.332 (subpoenas); 20 CFR 404.939, 416.1439 with 20 CFR 405.317(c) (objections to the issues).

    There is also a difference in claims processing at the Appeals Council level due to the Part 405 rules, especially those that address when the Appeals Council considers additional evidence. Under Parts 404 and 416, the Appeals Council will consider new and material evidence only when it relates to the period on or before the date of the ALJ hearing decision. The Appeals Council will evaluate the entire record, including any new and material evidence that relates to the period on or before the date of the ALJ hearing decision. It will then review the case if it finds that the ALJ's action, findings, or conclusion is contrary to the weight of the evidence currently of record.14

    14 20 CFR 404.970(b), 416.1470(b).

    However, under Part 405, the Appeals Council will consider additional evidence only where it relates to the period on or before the date of the ALJ hearing decision, and only if the claimant shows that there is a reasonable probability that the evidence, alone or when considered with other evidence of record, would change the outcome of the decision; and: (1) Our action misled the claimant; (2) he or she had a physical, mental, educational, or linguistic limitation(s) that prevented him or her from submitting the evidence earlier; or (3) some other unusual, unexpected, or unavoidable circumstance beyond his or her control prevented him or her from submitting the evidence earlier.15

    15 20 CFR 405.401(c).

    We have always intended to implement nationally consistent rules after we had sufficient time to evaluate the effectiveness of DSI processing. To assist us in evaluating these issues, we asked ACUS to review the impact of our Part 405 regulations at the hearings and Appeals Council levels. Ultimately, in its final report, ACUS deferred to us regarding whether to implement the Part 405 regulations nationwide.16 However, ACUS suggested a variety of guiding principles and other observations for us to consider in making a decision regarding national uniformity. For example, ACUS suggested that we: (1) Strive to attain an appropriate balance between claimant and agency interests as we pursue our goal of making the right disability decision as early in the process as possible; (2) strive for consistency in the administration of a national program; (3) collect and assess more data about the DSI program; and (4) if pursued, clarify the guidance to ALJs and claimants about application of the DSI program. ACUS also observed that if we pursued regulatory changes similar to DSI, it would be important to retain appropriate good cause exceptions for the late submission of evidence.

    16 See ACUS Report at 91.

    After considering ACUS's suggestions, we first provided additional training to ODAR adjudicators and staff regarding the application of our Part 405 rules. We also incorporated instructions for processing cases originating in the Boston region into our training materials for all staff, including addressing Part 405 issues in several of our quarterly Videos-On-Demand series that focus on new or problematic areas of adjudication. We continue to update sub-regulatory policy to include references and instructions on how to process cases under Part 405. As recommended by ACUS, we made these changes to promote consistent adjudication of Part 405 in the Boston region.

    We then carefully considered ACUS's findings on how we receive evidence under Part 405. In its report, ACUS explained that it performed a comparative empirical analysis of data that we provided,17 and its findings, while not definitive, appeared to show that the Part 405 rules made modest strides towards achieving our goal of improving the efficiency, accuracy, and timeliness of our disability adjudication process. While declining to draw definitive conclusions from its data analysis, ACUS highlighted several findings, including the following: (1) Under Part 405, there was less likelihood that adjudicators would determine the record needed additional evidence and request a consultative examination; (2) there were lower average processing times in the Boston region than other comparable regions, and the Boston region's average processing times did not exhibit the same comparative decline in average processing times found in other regions; and (3) the Boston region had the lowest pending disposition ratio, which suggests enhanced case efficiencies.

    17 For specific information about the data reviewed by ACUS, see ACUS Report Appendix.

    We note that several of ACUS's findings, based on the available data through 2012, are consistent with our experience. For example, ACUS stated that the “average time intervals between issuance of hearing notices and hearings have been rising steadily at both regional and national levels in recent years.” 18 While Parts 404 and 416 require that we provide notice to a claimant of a scheduled hearing at least 20 days before the hearing,19 and Part 405 requires that we provide notice to a claimant of a scheduled hearing at least 75 days before the hearing,20 it has been our experience that for several years nationwide, most claimants received more advance notice of a hearing than the regulations require. Specifically, the Boston region appears to be scheduling hearings and notifying claimants approximately 90 days before the hearing while other regions are providing notice more than 60 days before the hearing.21 Additionally, we have also observed that, nationally, cases in which we sent notices approximately 60 days prior to the date of the hearing seem to have a reduced or the same likelihood of a postponed hearing as those scheduled with less notice of the hearing.22 In addition to our experience, we also considered ACUS's finding that there was strong support from stakeholders, both inside and outside of the agency, for increasing the amount of advance notice a claimant receives before a hearing.

    18 See ACUS Report at 30.

    19 20 CFR 404.938(a), 416.1438(a).

    20 20 CFR 405.316(a).

    21 At the hearing level, we use the Case Processing and Management System (CPMS) to manage our workloads. From the information available in CPMS, we reviewed the number days between the date of the notice of hearing and the date of a scheduled hearing to assess whether these trends appear to continue. In the Boston region, CPMS shows the mean number of days between these dates to be 79.7 (2013), 88.5 (2014), and 90.3 (2015). The median number of days was 82.0 (2013), 89.0 (2014), and 90.0 (2015). Nationwide, CPMS shows the mean number of days was 64.3 (2013), 64.8 (2014), and 69.9 (2015). The median number of days was 60.0 (2013), 62.0 (2014), and 68.0 (2015). Though not yet complete, the numbers in 2016 appear to be consistent with these trends.

    22 After reviewing the information available in CPMS, we observed the following: In 2013, we postponed 26.1% of cases scheduled 25-49 days in advance, 26.4% of cases scheduled 50-74 days in advance, and 29.2% of cases scheduled 75-99 days in advance. In 2014, we postponed 28.3% of cases scheduled 25-49 days in advance, 27.3% of cases scheduled 50-74 days in advance, and 29.3% of cases scheduled 75-99 days in advance. In 2015, we postponed 28.1% of cases scheduled 25-49 days in advance, 26.8% of cases scheduled 50-74 days in advance, and 28.0% of cases scheduled 75-99 days in advance. We also note that our analysis showed that cases scheduled less than 25 days in advance had the highest rate of postponement.

    We considered proposing to adopt a 75-day advance notice requirement nationwide. However, the information available to us indicates that there may be a higher incidence of postponements when we give claimants 75 days or more advance notice of a hearing due to the unavailability of the appointed representative or adjudicator on the date of the scheduled hearing.23 In contrast, we have observed that most hearing offices already schedule hearings 60 days in advance, and a 60-day advance notice period appears to have the same or a reduced incidence of postponements when compared to notice periods less than 60 days.24 Therefore, based on the available data, we propose a 60-day notice requirement as the most administratively efficient. Further, because we are already scheduling most hearings nationwide at least 60 days in advance, we do not expect that adopting this requirement would have an adverse impact on the public or on our operations. As noted by ACUS, the public seems to support increasing the number of days for advance notice of a hearing because, among other reasons, it will provide more time to obtain updated medical records before the date of the hearing. Therefore, we propose to require that, nationwide, we notify claimants of a scheduled hearing at least 60 days prior to the date of the hearing.

    23 After reviewing the information available in CPMS for 2014-2016, we observed the following: In 2014 in the Boston region, hearings with at least one postponement were postponed 5.36% of the time due to a representative's unavailability and 8.07% of the time due to the unavailability of the decision maker. Nationally, the postponement rate for a representative's unavailability was 4.17% and a decision maker's unavailability was 5.91%. In 2015, the postponement rate in Boston for a representative's unavailability was 6.00% and a decision maker's unavailability was 8.02%. Nationally, the postponement rate for a representative's unavailability was 3.92% and a decision maker's unavailability was 6.76%. These trends appear to continue in 2016.

    24 See information in footnote 22.

    The highlights of ACUS's empirical analysis and our own experience also support adopting nationwide rules similar to the existing Part 405 rules that govern how we receive evidence in the Boston region. For example, our experience is that under Parts 404 and 416, some hearings are postponed or require supplemental proceedings due to late submission of evidence. We anticipate that our final rule on the “Submission of Evidence in Disability Claims,” 25 discussed earlier, will decrease the number of Appeals Council remands based on additional evidence. However, our experience has shown, and we expect to continue to see, that the Appeals Council will need to remand some cases due to new evidence. The need to postpone and reschedule cases, along with Appeals Council remands based on new evidence that was available at the time of the hearing decision, costs us valuable resources and delays the adjudication of all claims at the hearings and Appeals Council levels.

    25 80 FR 14828.

    In its report, ACUS also identified several concerns raised by stakeholders both inside and outside the agency with implementing Part 405 nationwide. For example, ACUS explained that both ALJs and claimants' representative groups agree that two of the most challenging obstacles to timely submission of evidence are: (1) Delays in receipt of evidence from medical providers, and (2) delays in receipt of evidence from the claimant. As previously discussed, we propose changing our rules so that we provide claimants with additional time to inform us about or to obtain and submit written evidence. In doing so, we will also change our notices to ensure claimants are advised of the additional time. To address concerns about delays in receiving evidence from medical providers, we propose to retain the current good cause exceptions used in Part 405. We also propose to add examples, including that we will accept evidence submitted less than 5 business days prior to the hearing if a claimant shows that he or she actively and diligently sought to obtain the evidence promptly, but could not do so.

    Based in part on ACUS's evaluation of the good cause exceptions to the Part 405 rule that requires claimants to submit evidence at least 5 business days before a hearing, we propose to clarify when other unusual, unexpected, or unavoidable circumstances beyond the claimant's control prevent earlier identification of or submission of evidence. To accomplish this, we have added examples to illustrate when a claimant meets a good cause exception, such as when a claimant is seriously ill or when evidence is not received until less than 5 business days before the hearing, despite the claimant's active and diligent efforts to obtain the evidence earlier. These examples are not intended to be exhaustive or to illustrate every possible situation, but to illustrate the sorts of situations most likely to arise.

    In addition to adding examples regarding the good cause requirements, we also explain that, when reviewing claims that are not based on an application for benefits, the requirement to submit evidence at least 5 business days before a hearing does not apply if our other regulations permit the submission of evidence after the date of an ALJ decision. For example, under current section 416.1476(b)(2) (proposed section 416.1470(b)), in reviewing decisions other than those based on an application for benefits, the Appeals Council will consider evidence in the hearing record and any additional evidence it believes is material to an issue being considered. Supplemental Security Income (SSI) cases under title XVI of the Act that are not based on an application for benefits are excepted from the general rules that limit the Appeals Council's consideration of additional evidence based on the individual's right to reestablish his or her eligibility for title XVI payments during the course of an appeal without filing a new application.26 Therefore, we added an exception to address this and similar situations where other regulations may permit the submission of evidence in claims that are not based on an application for benefits.

    26 See 20 CFR 416.305(b)(5) (providing that an individual need not file a new SSI application if he or she is notified that his or her payments will be stopped because he or she is no longer eligible and he or she again meets the requirements for eligibility before his or her appeal rights are exhausted).

    To ensure national consistency in our policy and procedures, we also propose requiring claimants to file written statements about the case, or any objections to the issues, at least 5 business days prior to a scheduled hearing. We further propose to require a claimant to submit subpoena requests at least 10 business days prior to a scheduled hearing. For consistency with these proposed changes, we also propose changes to our regulations to explain what constitutes the official record.

    Our proposal that generally requires claimants to submit written evidence at least 5 business days before a hearing also requires that we propose revisions to how the Appeals Council will handle additional evidence it receives on appeal. Under the proposed rule, the Appeals Council would generally consider additional evidence only if it is new and material and relates to the period on or before the date of the hearing decision, and only if the claimant shows that he or she did not submit the evidence at the hearing level because: (1) Our action misled him or her; (2) he or she had a physical, mental, educational, or linguistic limitation(s) that prevented him or her from informing us about or submitting the evidence earlier; or (3) some other unusual, unexpected, or unavoidable circumstance beyond his or her control prevented him or her from informing us about or submitting the evidence earlier. If these requirements are satisfied, the Appeals Council would grant review if there is a reasonable probability that the evidence, alone or considered with the evidence of record, would change the outcome of the hearing level decision. For additional evidence that does not relate to the period on or before the ALJ decision, the Appeals Council would continue to notify the claimant that because of the new evidence, if he or she files a new application within a specified timeframe, the date of the claimant's request for review would constitute a written statement indicating an intent to claim benefits. This means that we would use the date of the claimant's request for Appeals Council review as the filing date for the new application, which we call a protective filing date. In addition to retaining this current practice, the Appeals Council would also provide a claimant with a protective filing date when it finds he or she did not have good cause for not submitting the evidence at the hearing level at least 5 business days before the hearing. Additionally, we also propose to clarify that the Appeals Council may conduct hearing proceedings to obtain additional evidence when needed.

    In addition to creating greater uniformity in our procedures, we expect these changes will improve our ability to manage our workloads. Most importantly, we expect these changes to allow us to adjudicate cases and process workloads more efficiently and consistently, leading to better public service overall.

    Because these proposed changes would bring the vast majority of Part 405 procedures in line with the procedures in Parts 404 and 416, we also propose to remove Part 405 in its entirety. In doing so, we acknowledge there are several sections in Part 405 that include minor language or substantive variances from Part 404 and Part 416 that we did not address above. For example, the requirements for showing good cause to extend a filing deadline are different under Part 405 from the ones we propose here. We intend that, other than the changes we propose in this NPRM, we are not proposing to adopt any of the other variances currently in Part 405.

    Clarity of These Proposed Rules

    Executive Order 12866, as supplemented by Executive Order 13563, requires each agency to write all rules in plain language. In addition to your substantive comments on this proposed rule, we invite your comments on how to make it easier to understand.

    For example:

    • Would more, but shorter, sections be better?

    • Are the requirements in the rule clearly stated?

    • Have we organized the material to suit your needs?

    • Could we improve clarity by adding tables, lists, or diagrams?

    • What else could we do to make the rule easier to understand?

    • Does the rule contain technical language or jargon that is not clear?

    • Would a different format make the rule easier to understand, e.g., grouping and order of sections, use of headings, paragraphing?

    Regulatory Procedures Executive Order 12866, as Supplemented by Executive Order 13563

    We consulted with the Office of Management and Budget (OMB) and determined that this proposed rule meets the criteria for a significant regulatory action under Executive Order 12866, as supplemented by Executive Order 13563. Therefore, OMB reviewed it.

    Regulatory Flexibility Act

    We certify that this proposed rule would not have a significant economic impact on a substantial number of small entities because it affects individuals only. Therefore, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act, as amended.

    Paperwork Reduction Act

    These proposed rules contain reporting requirements in the regulation sections §§ 404.929, 404.935, 404.939, 404.949, 404.950(2), 404.968, 416.1429, 416.1435, 416.1439, 416.1449, 416.1450 and 416.1468 that require OMB clearance under the Paperwork Reduction Act of 1995 (PRA). For sections 404.929, 404.949, 404.950(2), 416.1429, 416.1449, 416.1450(2) of these rules, we previously accounted for the public reporting burdens in the Information Collection Requests for OMB Numbers 0960-0269 and 0960-0710, which the public use to submit the information to SSA. Consequently, we are not reporting these sections. SSA will solicit public comment and will submit separate information collection requests to OMB in the future for regulations sections §§ 404.935, 404.939, 404.968, 416.1435, 416.1439, and 416.1468 as they require OMB clearance under the Paperwork Reduction Act of 1995 (PRA). We will not collect the information referenced in these burden sections until we receive OMB approval.

    (Catalog of Federal Domestic Assistance Program Nos. 96.001, Social Security—Disability Insurance; 96.002, Social Security—Retirement Insurance; 96.004, Social Security—Survivors Insurance; and 96.006, Supplemental Security Income) List of Subjects 20 CFR Part 404

    Administrative practice and procedure; Blind; Disability benefits; Old-age, survivors, and disability insurance; Reporting and recordkeeping requirements; Social Security.

    20 CFR Part 405

    Administrative practice and procedure; Blind; Disability benefits; Old-age, survivors, and disability insurance; Public assistance programs; Reporting and recordkeeping requirements; Social Security; Supplemental Security Income (SSI).

    20 CFR Part 416

    Administrative practice and procedure; Aged, Blind, Disability benefits, Public assistance programs; Reporting and recordkeeping requirements; Supplemental Security Income (SSI).

    Dated: May 31, 2016. Carolyn W. Colvin, Acting Commissioner of Social Security.

    For the reasons set out in the preamble, we propose to amend 20 CFR chapter III parts 404, 405, and 416 as set forth below:

    PART 404—FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE (1950- ) Subpart J—[Amended] 1. The authority citation for subpart J of part 404 continues to read as follows: Authority:

    Secs. 201(j), 204(f), 205(a)-(b), (d)-(h), and (j), 221, 223(i), 225, and 702(a)(5) of the Social Security Act (42 U.S.C. 401(j), 404(f), 405(a)-(b), (d)-(h), and (j), 421, 423(i), 425, and 902(a)(5)); sec. 5, Pub. L. 97-455, 96 Stat. 2500 (42 U.S.C. 405 note); secs. 5, 6(c)-(e), and 15, Pub. L. 98-460, 98 Stat. 1802 (42 U.S.C. 421 note); sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).

    2. In § 404.900, revise the second sentence of paragraph (b) to read as follows:
    § 404.900 Introduction.

    (b) * * * Subject to the limitations on Appeals Council consideration of additional evidence (see § 404.970(b)), we will consider at each step of the review process any information you present as well as all the information in our records.* * *

    3. In § 404.929, revise the fifth sentence to read as follows:
    § 404.929 Hearing before an administrative law judge-general.

    * * * Subject to the provisions of § 404.935, you may submit new evidence, examine the evidence used in making the determination or decision under review, and present and question witnesses.* * *

    4. Revise § 404.935 to read as follows:
    § 404.935 Submitting written evidence to an administrative law judge.

    (a) When you submit your request for hearing, you should also submit information or evidence as required by § 404.1512 or any summary of the evidence to the administrative law judge. Each party must make every effort to ensure that the administrative law judge receives all of the evidence and must inform us about or submit any written evidence, as required in § 404.1512, no later than 5 business days before the date of the scheduled hearing. If you do not comply with this requirement, the administrative law judge may decline to consider or obtain the evidence unless the circumstances described in paragraph (b) of this section apply.

    (b) If you have evidence required under § 404.1512 but you have missed the deadline described in paragraph (a) of this section, the administrative law judge will accept the evidence if he or she has not yet issued a decision and you show that you did not inform us about or submit the evidence before the deadline because:

    (1) Our action misled you;

    (2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from informing us about or submitting the evidence earlier; or

    (3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier. For example, the administrative law judge will accept the evidence if you show that:

    (i) You were seriously ill, and your illness prevented you from contacting us in person, in writing, or through a friend, relative, or other person;

    (ii) There was a death or serious illness in your immediate family;

    (iii) Important records were destroyed or damaged by fire or other accidental cause; or

    (iv) You actively and diligently sought evidence from a source and, through no fault of your own, the evidence was not received or was received less than 5 business days prior to the hearing.

    5. In § 404.938, revise paragraphs (a) and (b) to read as follows:
    § 404.938 Notice of a hearing before an administrative law judge.

    (a) Issuing the notice. After we set the time and place of the hearing, we will mail notice of the hearing to you at your last known address, or give the notice to you by personal service, unless you have indicated in writing that you do not wish to receive this notice. We will mail or serve the notice at least 60 days before the date of the hearing.

    (b) Notice information. The notice of hearing will tell you:

    (1) The specific issues to be decided in your case;

    (2) That you may designate a person to represent you during the proceedings;

    (3) How to request that we change the time or place of your hearing;

    (4) That your hearing may be dismissed if neither you nor the person you designate to act as your representative appears at your scheduled hearing without good reason under § 404.957;

    (5) Whether your appearance or that of any other party or witness is scheduled to be made in person, by video teleconferencing, or by telephone. If we have scheduled you to appear at the hearing by video teleconferencing, the notice of hearing will tell you that the scheduled place for the hearing is a video teleconferencing site and explain what it means to appear at your hearing by video teleconferencing;

    (6) That you must make every effort to inform us about or submit all written evidence that is not already in the record no later than 5 business days before the date of the scheduled hearing, unless you show that your circumstances meet the conditions described in § 404.935(b); and

    (7) Any other information about the scheduling and conduct of your hearing.

    6. Revise § 404.939 to read as follows:
    § 404.939 Objections to the issues.

    If you object to the issues to be decided at the hearing, you must notify the administrative law judge in writing at the earliest possible opportunity, but no later than 5 business days before the date set for the hearing. You must state the reason(s) for your objection(s). The administrative law judge will make a decision on your objection(s) either at the hearing or in writing before the hearing.

    7. Revise § 404.944 to read as follows:
    § 404.944 Administrative law judge hearing procedures—general.

    (a) A hearing is open to the parties and to other persons the administrative law judge considers necessary and proper. At the hearing, the administrative law judge looks fully into the issues, questions you and the other witnesses, and, subject to the provisions of § 404.935:

    (1) Accepts as evidence any documents that are material to the issues;

    (2) May stop the hearing temporarily and continue it at a later date if he or she finds that there is material evidence missing at the hearing; and

    (3) May reopen the hearing at any time before he or she mails a notice of the decision in order to receive new and material evidence.

    (b) The administrative law judge may decide when the evidence will be presented and when the issues will be discussed.

    8. Revise § 404.949 to read as follows:
    § 404.949 Presenting written statements and oral arguments.

    You or a person you designate to act as your representative may appear before the administrative law judge to state your case, present a written summary of your case, or enter written statements about the facts and law material to your case in the record. You must provide a copy of your written statements for each party no later than 5 business days before the date set for the hearing.

    9. In § 404.950, revise paragraphs (c) and (d) to read as follows:
    § 404.950 Presenting evidence at a hearing before an administrative law judge.

    (c) Admissible evidence. Subject to the provisions of § 404.935, the administrative law judge may receive any evidence at the hearing that he or she believes is material to the issues, even though the evidence would not be admissible in court under the rules of evidence used by the court.

    (d) Subpoenas. (1) When it is reasonably necessary for the full presentation of a case, an administrative law judge or a member of the Appeals Council may, on his or her own initiative or at the request of a party, issue subpoenas for the appearance and testimony of witnesses and for the production of books, records, correspondence, papers, or other documents that are material to an issue at the hearing.

    (2) Parties to a hearing who wish to subpoena documents or witnesses must file a written request for the issuance of a subpoena with the administrative law judge or at one of our offices at least 10 business days before the hearing date. The written request must give the names of the witnesses or documents to be produced; describe the address or location of the witnesses or documents with sufficient detail to find them; state the important facts that the witness or document is expected to prove; and indicate why these facts could not be proven without issuing a subpoena.

    (3) We will pay the cost of issuing the subpoena.

    (4) We will pay subpoenaed witnesses the same fees and mileage they would receive if they had been subpoenaed by a Federal district court.

    10. Revise § 404.951 to read as follows:
    § 404.951 Official record.

    (a) Hearing recording. All hearings will be recorded. The hearing recording will be prepared as a typed copy of the proceedings if—

    (1) The case is sent to the Appeals Council without a decision or with a recommended decision by the administrative law judge;

    (2) You seek judicial review of your case by filing an action in a Federal district court within the stated time period, unless we request the court to remand the case; or

    (3) An administrative law judge or the Appeals Council asks for a written record of the proceedings.

    (b) Contents of the official record. All evidence upon which the administrative law judge relies for the decision must be contained in the record, either directly or by appropriate reference. The official record will include the applications, written statements, certificates, reports, affidavits, medical records, and other documents that were used in making the decision under review and any additional evidence or written statements that the administrative law judge admits into the record under §§ 404.929 and 404.935. All exhibits introduced as evidence must be marked for identification and incorporated into the record. The official record of your claim will contain all of the marked exhibits and a verbatim recording of all testimony offered at the hearing; it also will include any prior initial determinations or decisions on your claim.

    11. In § 404.968, revise the second sentence of paragraph (a) introductory text to read as follows:
    § 404.968 How to request Appeals Council review.

    (a) * * * You should submit any evidence you wish to have considered by the Appeals Council with your request for review, and the Appeals Council will consider the evidence in accordance with § 404.970(b). * * *

    12. Revise § 404.970 to read as follows:
    § 404.970 Cases the Appeals Council will review.

    (a) The Appeals Council will review a case if—

    (1) There appears to be an abuse of discretion by the administrative law judge;

    (2) There is an error of law;

    (3) The action, findings or conclusions of the administrative law judge are not supported by substantial evidence;

    (4) There is a broad policy or procedural issue that may affect the general public interest; or

    (5) The Appeals Council receives additional evidence that meets the requirements in paragraph (b) of this section, and there is a reasonable probability that the additional evidence, alone or considered with the evidence of record, would change the outcome of the decision.

    (b) Under paragraph (a)(5) of this section, the Appeals Council will only consider additional evidence if you show that it is new and material and relates to the period on or before the date of the hearing decision, and you did not inform us about or submit the evidence by the deadline described in § 404.935 because:

    (1) Our action misled you;

    (2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from informing us about or submitting the evidence earlier; or

    (3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier. Examples of circumstances that, if documented, the Appeals Council may consider accepting the evidence include, but are not limited to, the following:

    (i) You were seriously ill, and your illness prevented you from contacting us in person, in writing, or through a friend, relative, or other person;

    (ii) There was a death or serious illness in your immediate family;

    (iii) Important records were destroyed or damaged by fire or other accidental cause; or

    (iv) You actively and diligently sought evidence from a source and, through no fault of your own, the evidence was not received or was received less than 5 business days prior to the hearing.

    (c) If you submit additional evidence that does not relate to the period on or before the date of the administrative law judge hearing decision as required in paragraph (b) of this section, or the Appeals Council does not find you had good cause for missing the deadline to submit the evidence in § 404.935, the Appeals Council will send you a notice that explains why it did not accept the additional evidence and advises you of your right to file a new application. The notice will also advise you that if you file a new application within 6 months after the date of the Appeals Council's notice, your request for review will constitute a written statement indicating an intent to claim benefits under § 404.630. If you file a new application within 6 months of the Appeals Council's notice, we will use the date you requested Appeals Council review as the filing date for your new application.

    (d) If the Appeals Council needs additional evidence, it may remand the case to an administrative law judge to receive evidence and issue a new decision. However, if the Appeals Council decides that it can obtain the evidence more quickly, it may do so, unless it will adversely affect your rights. In some cases, the Appeals Council may obtain this evidence by conducting additional hearing proceedings.

    13. Revise § 404.976 to read as follows:
    § 404.976 Procedures before the Appeals Council on review.

    (a) Limitation of issues. The Appeals Council may limit the issues it considers if it notifies you and the other parties of the issues it will review.

    (b) Oral argument. You may request to appear before the Appeals Council to present oral argument. The Appeals Council will grant your request if it decides that your case raises an important question of law or policy or that oral argument would help to reach a proper decision. If your request to appear is granted, the Appeals Council will tell you the time and place of the oral argument at least 10 business days before the scheduled date. The Appeals Council will determine whether your appearance, or the appearance of any other person relevant to the proceeding, will be in person, by video teleconferencing, or by telephone.

    PART 405—[REMOVED AND RESERVED] 14. Under the authority of sections 205(a), 702(a)(5), and 1631(d)(1) of the Social Security Act, part 405 is removed and reserved. PART 416—SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND DISABLED Subpart N—Determinations, Administrative Review Process, and Reopening of Determinations and Decisions 15. The authority citation for subpart N of part 416 continues to read as follows: Authority:

    Secs. 702(a)(5), 1631, and 1633 of the Social Security Act (42 U.S.C. 902(a)(5), 1383, and 1383b); sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).

    16. In § 416.1400, revise the second sentence of paragraph (b) to read as follows:
    § 416.1400 Introduction.

    (b) * * * Subject to the limitations on Appeals Council consideration of additional evidence (see § 416.1470(b)), we will consider at each step of the review process any information you present as well as all the information in our records.* * *

    17. In § 416.1429, revise the fifth sentence to read as follows:
    § 416.1429 Hearing before an administrative law judge-general.

    * * * Subject to the limitations in § 416.1435, you may submit new evidence, examine the evidence used in making the determination or decision under review, and present and question witnesses.* * *

    18. Revise § 416.1435 to read as follows:
    § 416.1435 Submitting written evidence to an administrative law judge.

    (a) When you submit your request for hearing, you should also submit information or evidence as required by § 416.912 or any summary of the evidence to the administrative law judge. Each party must make every effort to ensure that the administrative law judge receives all of the evidence, and you must inform us about or submit any written evidence, as required in § 416.912, no later than 5 business days before the date of the scheduled hearing. If you do not comply with this requirement, the administrative law judge may decline to consider or obtain the evidence unless the circumstances described in paragraph (b) of this section apply.

    (b) If you have evidence required under § 416.912 but you have missed the deadline described in paragraph (a) of this section, the administrative law judge will accept the evidence if he or she has not yet issued a decision and you show that you did not inform us about or submit the evidence before the deadline because:

    (1) Our action misled you;

    (2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from informing us about or submitting the evidence earlier; or

    (3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier. For example, the administrative law judge will accept the evidence if you show that:

    (i) You were seriously ill, and your illness prevented you from contacting us in person, in writing, or through a friend, relative, or other person;

    (ii) There was a death or serious illness in your immediate family;

    (iii) Important records were destroyed or damaged by fire or other accidental cause; or

    (iv) You actively and diligently sought evidence from a source and, through no fault of your own, the evidence was not received or was received less than 5 business days prior to the hearing.

    (c) Notwithstanding the requirements in paragraphs (a) and (b) of this section, for claims that are not based on an application for benefits, the evidentiary requirement to inform us about or submit evidence no later than 5 business days before the date of the scheduled hearing will not apply if our other regulations allow you to submit evidence after the date of an administrative law judge decision.

    19. In § 416.1438, revise paragraphs (a) and (b) to read as follows:
    § 416.1438 Notice of a hearing before an administrative law judge.

    (a) Issuing the notice. After we set the time and place of the hearing, we will mail notice of the hearing to you at your last known address, or give the notice to you by personal service, unless you have indicated in writing that you do not wish to receive this notice. We will mail or serve the notice at least 60 days before the hearing.

    (b) Notice information. The notice of hearing will tell you:

    (1) The specific issues to be decided in your case;

    (2) That you may designate a person to represent you during the proceedings;

    (3) How to request that we change the time or place of your hearing;

    (4) That your hearing may be dismissed if neither you nor the person you designate to act as your representative appears at your scheduled hearing without good reason under § 416.1457;

    (5) Whether your appearance or that of any other party or witness is scheduled to be made in person, by video teleconferencing, or by telephone. If we have scheduled you to appear at the hearing by video teleconferencing, the notice of hearing will tell you that the scheduled place for the hearing is a video teleconferencing site and explain what it means to appear at your hearing by video teleconferencing;

    (6) That you must make every effort to inform us about or submit all written evidence that is not already in the record no later than 5 business days before the date of the scheduled hearing, unless you show that your circumstances meet the conditions described in § 416.1435(b); and

    (7) Any other information about the scheduling and conduct of your hearing.

    20. Revise § 416.1439 to read as follows:
    § 416.1439 Objections to the issues.

    If you object to the issues to be decided at the hearing, you must notify the administrative law judge in writing at the earliest possible opportunity, but no later than 5 business days before the date set for the hearing. You must state the reason(s) for your objection(s). The administrative law judge will make a decision on your objection(s) either at the hearing or in writing before the hearing.

    21. Revise § 416.1444 to read as follows:
    § 416.1444 Administrative law judge hearing procedures—general.

    (a) A hearing is open to the parties and to other persons the administrative law judge considers necessary and proper. At the hearing, the administrative law judge looks fully into the issues, questions you and the other witnesses, and, subject to the provisions of § 416.1435:

    (1) Accepts as evidence any documents that are material to the issues;

    (2) May stop the hearing temporarily and continue it at a later date if he or she finds that there is material evidence missing at the hearing; and

    (3) May reopen the hearing at any time before he or she mails a notice of the decision in order to receive new and material evidence.

    (b) The administrative law judge may decide when the evidence will be presented and when the issues will be discussed.

    22. Revise § 416.1449 to read as follows:
    § 416.1449 Presenting written statements and oral arguments.

    You or a person you designate to act as your representative may appear before the administrative law judge to state your case, present a written summary of your case, or enter written statements about the facts and law material to your case in the record. You must provide a copy of your written statements for each party no later than 5 business days before the date set for the hearing.

    23. In § 416.1450, revise paragraphs (c) and (d) to read as follows:
    § 416.1450 Presenting evidence at a hearing before an administrative law judge.

    (c) Admissible evidence. Subject to the provisions of § 416.1435, the administrative law judge may receive any evidence at the hearing that he or she believes is material to the issues, even though the evidence would not be admissible in court under the rules of evidence used by the court.

    (d) Subpoenas. (1) When it is reasonably necessary for the full presentation of a case, an administrative law judge or a member of the Appeals Council may, on his or her own initiative or at the request of a party, issue subpoenas for the appearance and testimony of witnesses and for the production of books, records, correspondence, papers, or other documents that are material to an issue at the hearing.

    (2) Parties to a hearing who wish to subpoena documents or witnesses must file a written request for the issuance of a subpoena with the administrative law judge or at one of our offices at least 10 business days before the hearing date. The written request must give the names of the witnesses or documents to be produced; describe the address or location of the witnesses or documents with sufficient detail to find them; state the important facts that the witness or document is expected to prove; and indicate why these facts could not be proven without issuing a subpoena.

    (3) We will pay the cost of issuing the subpoena.

    (4) We will pay subpoenaed witnesses the same fees and mileage they would receive if they had been subpoenaed by a Federal district court.

    24. Revise § 416.1451 to read as follows:
    § 416.1451 Official record.

    (a) Hearing recording. All hearings will be recorded. The hearing recording will be prepared as a typed copy of the proceedings if—

    (1) The case is sent to the Appeals Council without a decision or with a recommended decision by the administrative law judge;

    (2) You seek judicial review of your case by filing an action in a Federal district court within the stated time period, unless we request the court to remand the case; or

    (3) An administrative law judge or the Appeals Council asks for a written record of the proceedings.

    (b) Contents of the official record. All evidence upon which the administrative law judge relies for the decision must be contained in the record, either directly or by appropriate reference. The official record will include the applications, written statements, certificates, reports, affidavits, medical records, and other documents that were used in making the decision under review and any additional evidence or written statements that the administrative law judge admits into the record under §§ 416.1429 and 416.1435. All exhibits introduced as evidence must be marked for identification and incorporated into the record. The official record of your claim will contain all of the marked exhibits and a verbatim recording of all testimony offered at the hearing; it also will include any prior initial determinations or decisions on your claim.

    25. In § 416.1468, revise the second sentence of paragraph (a) to read as follows:
    § 416.1468 How to request Appeals Council review.

    (a) * * * You should submit any evidence you wish to have considered by the Appeals Council with your request for review, and the Appeals Council will consider the evidence in accordance with § 416.1470(b). * * *

    26. Revise § 416.1470 to read as follows:
    § 416.1470 Cases the Appeals Council will review.

    (a) The Appeals Council will review a case if—

    (1) There appears to be an abuse of discretion by the administrative law judge;

    (2) There is an error of law;

    (3) The action, findings or conclusions of the administrative law judge are not supported by substantial evidence;

    (4) There is a broad policy or procedural issue that may affect the general public interest; or

    (5) The Appeals Council receives additional evidence that meets the requirements in paragraph (b) of this section, and there is a reasonable probability that the additional evidence, alone or considered with the evidence of record, would change the outcome of the decision.

    (b) In reviewing decisions other than those based on an application for benefits, the Appeals Council will consider the evidence in the administrative law judge hearing record and any additional evidence it believes is material to an issue being considered. However, in reviewing decisions based on an application for benefits, under paragraph (a)(5) of this section, the Appeals Council will only consider additional evidence if you show that it is new and material and relates to the period on or before the date of the hearing decision, and you did not inform us about or submit the evidence by the deadline described in § 416.1435 because:

    (1) Our action misled you;

    (2) You had a physical, mental, educational, or linguistic limitation(s) that prevented you from informing us about or submitting the evidence earlier; or

    (3) Some other unusual, unexpected, or unavoidable circumstance beyond your control prevented you from informing us about or submitting the evidence earlier. Examples of circumstances that, if documented, the Appeals Council may consider accepting the evidence include, but are not limited to, the following:

    (i) You were seriously ill, and your illness prevented you from contacting us in person, in writing, or through a friend, relative, or other person;

    (ii) There was a death or serious illness in your immediate family;

    (iii) Important records were destroyed or damaged by fire or other accidental cause; or

    (iv) You actively and diligently sought evidence from a source and, through no fault of your own, the evidence was not received or was received less than 5 business days prior to the hearing.

    (c) If you submit additional evidence that does not relate to the period on or before the date of the administrative law judge hearing decision as required in paragraph (b) of this section, or the Appeals Council does not find you had good cause for missing the deadline to submit the evidence in § 416.1435, the Appeals Council will send you a notice that explains why it did not accept the additional evidence and advises you of your right to file a new application. The notice will also advise you that if you file a new application within 60 days after the date of the Appeals Council's notice, your request for review will constitute a written statement indicating an intent to claim benefits under § 416.340. If you file a new application within 60 days of the Appeals Council's notice, we will use the date you requested Appeals Council review as the filing date for your new application.

    (d) If the Appeals Council needs additional evidence, it may remand the case to an administrative law judge to receive evidence and issue a new decision. However, if the Appeals Council decides that it can obtain the evidence more quickly, it may do so, unless it will adversely affect your rights. In some cases, the Appeals Council may obtain this evidence by conducting additional hearing proceedings.

    27. Revise § 416.1476 to read as follows:
    § 416.1476 Procedures before the Appeals Council on review.

    (a) Limitation of issues. The Appeals Council may limit the issues it considers if it notifies you and the other parties of the issues it will review.

    (b) Oral argument. You may request to appear before the Appeals Council to present oral argument. The Appeals Council will grant your request if it decides that your case raises an important question of law or policy or that oral argument would help to reach a proper decision. If your request to appear is granted, the Appeals Council will tell you the time and place of the oral argument at least 10 business days before the scheduled date. The Appeals Council will determine whether your appearance, or the appearance of any other person relevant to the proceeding, will be in person, by video teleconferencing, or by telephone.

    [FR Doc. 2016-16265 Filed 7-11-16; 8:45 am] BILLING CODE P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-101689-16] RIN 1545-BN25 Requirement To Notify the IRS of Intent To Operate as a Section 501(c)(4) Organization AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Notice of proposed rulemaking by cross-reference to temporary regulations.

    SUMMARY:

    In the Rules and Regulations section of this issue of the Federal Register, the IRS is issuing temporary regulations relating to the requirement, added by the Protecting Americans from Tax Hikes Act of 2015, that organizations must notify the IRS of their intent to operate under section 501(c)(4) of the Internal Revenue Code (Code). The text of those temporary regulations also serves as the text of these proposed regulations.

    DATES:

    Comments and requests for a public hearing must be received by October 11, 2016.

    ADDRESSES:

    Send submissions to: CC:PA:LPD:PR (REG-101689-16), room 5205, Internal Revenue Service, PO Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-101689-16), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC, or sent electronically via the Federal eRulemaking Portal at http://www.regulations.gov (IRS REG-101689-16).

    FOR FURTHER INFORMATION CONTACT:

    Concerning the proposed regulations, Chelsea Rubin at (202) 317-5800; concerning submission of comments and request for hearing, Regina Johnson at (202) 317-6901 (not toll-free numbers).

    SUPPLEMENTARY INFORMATION:

    Paperwork Reduction Act

    The collection of information contained in this notice of proposed rulemaking will be reviewed and, pending receipt and evaluation of public comments, approved by the Office of Management and Budget under control number 1545-2268 in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)). Comments on the collection of information should be sent to the Office of Management and Budget, Attn: Desk Officer for the Department of the Treasury, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies to the Internal Revenue Service, Attn: IRS Reports Clearance Officer, SE:W:CAR:MP:T:T:SP, Washington, DC 20224. Comments on the collection of information should be received by September 12, 2016.

    The collection of information is in § 1.506-1T(a)(2). The likely respondents are organizations described in section 501(c)(4) of the Code (section 501(c)(4) organizations). The collection of information in § 1.506-1T(a)(2) flows from section 506(b) of the Code, which requires a section 501(c)(4) organization to submit a notification including the following items of information: (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. The temporary regulations provide that the notification must be submitted on Form 8976, “Notice of Intent to Operate Under Section 501(c)(4),” or its successor. In addition to the specific information required by statute, the temporary regulations require that an organization provide any additional information that 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. Form 8976 requires an organization to provide its annual accounting period to ensure that the statutorily-required items of information in the notification are correlated accurately within existing IRS systems. The burden for the collection of information in § 1.506-1T(a)(2)(i) through (iv) associated with the one-time submission of the notification will be reflected in the burden estimate for Form 8976.

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

    Books or 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 return information are confidential, as required by 26 U.S.C. 6103.

    Background and Explanation of Provisions

    Temporary regulations in the Rules and Regulations section of this issue of the Federal Register contain amendments to the Income Tax Regulations (26 CFR part 1) that provide guidance relating to section 405 of the Protecting Americans from Tax Hikes Act of 2015 (Pub. L. 114-113, div. Q), regarding the new requirement that organizations must notify the IRS of their intent to operate under section 501(c)(4) of the Code. The text of those temporary regulations also serves as the text of these proposed regulations and the preamble to the temporary regulations explains the relevant provisions.

    Statement of Availability of IRS Documents

    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.

    Special Analyses

    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 also has been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations. It is hereby certified that the collection of information in these regulations will not have a significant impact on a substantial number of small entities. The collection of information is in § 1.506-1T(a)(2). The certification is based on the following:

    Section 1.506-1T(a)(2) requires the notification to include only a few pieces of basic information: (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; (3) a statement of the purpose of the organization; and (4) such additional information as may be prescribed by published guidance in the Internal Revenue Bulletin or in other guidance, such as forms or instructions, issued with respect to the notification.

    These requirements will have a minimal burden on section 501(c)(4) organizations submitting the notification, including small section 501(c)(4) organizations. The notification requires only basic information regarding the organization and, as such, will require little time to submit. Moreover, the burden on small organizations is further minimized because the information is only required to be submitted once.

    For these reasons, a Regulatory Flexibility Analysis under the Regulatory Flexibility Act (5 U.S.C. chapter 6) is not required. 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.

    Comments and Requests for Public Hearing

    Before these proposed regulations are adopted as final regulations, consideration will be given to any comments that are submitted timely to the IRS as prescribed in this preamble under the ADDRESSES heading. The Treasury Department and the IRS request comments on all aspects of the proposed rules. All comments will be available at www.regulations.gov or upon request.

    A public hearing will be scheduled if requested in writing by any person that timely submits written comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the Federal Register.

    Drafting Information

    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.

    List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

    Proposed Amendments to the Regulations

    Accordingly, 26 CFR part 1 is proposed to be amended as follows:

    PART 1—INCOME TAXES

    Paragraph 1. The authority citation for part 1 continues to read in part as follows:

    Authority:

    26 U.S.C. 7805 * * *

    Par. 2. Section 1.506-1 is added to read as follows:

    § 1.506-1 Organizations required to notify Commissioner of intent to operate under section 501(c)(4).

    [The text of proposed § 1.506-1 is the same as the text for § 1.506-1T published elsewhere in this issue of the Federal Register].

    John Dalrymple, Deputy Commissioner for Services and Enforcement.
    [FR Doc. 2016-16337 Filed 7-8-16; 11:15 am] BILLING CODE 4830-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2010-0895; FRL-9948-86-OAR] RIN 2060-AS90 National Emission Standards for Hazardous Air Pollutants: Ferroalloys Production AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Reconsideration; proposed rule.

    SUMMARY:

    On June 30, 2015, the Environmental Protection Agency (EPA) published the residual risk and technology review (RTR) final rule, establishing national emission standards for hazardous air pollutants (NESHAP) for the Ferroalloys Production source category. Subsequently, the EPA received two petitions for reconsideration of certain aspects of the final rule. The EPA is announcing reconsideration of and requesting public comment on three issues raised in the petitions for reconsideration, as detailed in the SUPPLEMENTARY INFORMATION section of this action. The three issues the EPA is reconsidering and seeking public comment on are the following: the polycyclic aromatic hydrocarbons (PAH) compliance testing frequency for furnaces that produce ferromanganese (FeMn); the use of the digital camera opacity technique (DCOT) for determining compliance with the shop building opacity standards; and the use of bag leak detection systems (BLDS) on positive pressure baghouses. The EPA is seeking comment only on these three issues and will not respond to comments addressing other issues or other provisions of the final rule. The EPA is not proposing any changes to the NESHAP in this document.

    DATES:

    Comments. Comments must be received on or before August 26, 2016.

    Public Hearing. If anyone contacts us requesting to speak at a public hearing by July 18, 2016, a public hearing will be held on July 27, 2016. If you are interested in attending the public hearing, contact Ms. Virginia Hunt at (919) 541-0832 or by email at [email protected] to verify that a hearing will be held. If the EPA holds a public hearing, the EPA will keep the record of the hearing open for 30 days after completion of the hearing to provide an opportunity for submission of rebuttal and supplementary information.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2010-0895, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the Web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy information about CBI, or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-2010-0895. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be CBI or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov Web site is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you submit an electronic comment through http://www.regulations.gov, the EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. If you send an email comment directly to the EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

    Docket. The EPA has established a docket for this rulemaking under Docket ID No. EPA-HQ-OAR-2010-0895. All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at the EPA Docket Center, EPA WJC West Building, Room Number 3334, 1301 Constitution Avenue NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the EPA Docket Center is (202) 566-1742.

    Public Hearing. If requested by July 18, 2016, we will hold a public hearing on July 27, 2016, from 10:00 a.m. [Eastern Standard Time] to 5:00 p.m. [Eastern Standard Time] at the U.S. Environmental Protection Agency building located at 109 T.W. Alexander Drive, Research Park, NC 27711. Please contact Virginia Hunt of the Sector Policies and Programs Division via email at [email protected] or phone at (919) 541-0832 to request a hearing, register to speak at the hearing, or to inquire as to whether or not a hearing will be held. The last day to pre-register in advance to speak at the hearing will be July 25, 2016. Additionally, requests to speak will be taken the day of the hearing at the hearing registration desk, although preferences on speaking times may not be able to be fulfilled. If you require the service of a translator or special accommodations such as audio description, we ask that you pre-register for the hearing, as we may not be able to arrange such accommodations without advance notice. The hearing will provide interested parties the opportunity to present data, views, or arguments concerning the proposed rule reconsideration action. The EPA will make every effort to accommodate all speakers who arrive and register. Because this hearing is held at a U.S. government facility, individuals planning to attend the hearing should be prepared to show valid picture identification to the security staff in order to gain access to the meeting room. Please note that the REAL ID Act, passed by Congress in 2005, established new requirements for entering Federal facilities. If your driver's license is issued by Alaska, American Samoa, Arizona, Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Montana, New York, Oklahoma, or the state of Washington, you must present an additional form of identification to enter the federal building. Acceptable alternative forms of identification include: Federal employee badges, passports, enhanced driver's licenses, and military identification cards. In addition, you will need to obtain a property pass for any personal belongings you bring with you. Upon leaving the building, you will be required to return this property pass to the security desk. No large signs will be allowed in the building, cameras may only be used outside of the building, and demonstrations will not be allowed on federal property for security reasons. The EPA may ask clarifying questions during the oral presentations, but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral comments and supporting information presented at the public hearing. Verbatim transcripts of the hearing and written statements will be included in the docket for the rulemaking. The EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearing to run either ahead of schedule or behind schedule. Again, a hearing will not be held on this rulemaking unless requested. A hearing needs to be requested by July 18, 2016.

    FOR FURTHER INFORMATION CONTACT:

    For questions about this action, contact Phil Mulrine, Sector Policies and Programs Division (D243-02), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-5289; fax number: (919) 541-3207; and email address: [email protected] For information about the applicability of the NESHAP to a particular entity, contact Cary Secrest, Office of Enforcement and Compliance Assurance (2242A), U.S. Environmental Protection Agency, EPA WJC South Building, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564-8661; and email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Organization of this Document. The information presented in this preamble is organized as follows:

    I. General Information A. Does this action apply to me? B. What action is the agency taking? C. What is the agency's authority for taking this action? D. What are the incremental cost impacts of this action? II. Background III. Discussion of the Issues Under Reconsideration A. Quarterly PAH Testing for Furnaces Producing FeMn B. DCOT Opacity Compliance Demonstration C. BLDS on Positive Pressure Baghouses IV. Impacts of This Action A. Economic Impacts B. Environmental Impacts V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review, and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act (NTTAA) J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations I. General Information A. Does this action apply to me?

    Categories and entities potentially affected by this action are shown in Table 1 of this preamble.

    Table 1—NESHAP and Industrial Source Categories Affected by This Proposed Action NESHAP and source
  • category
  • NAICS 1 Code
    Ferroalloys Production 331112 1 North American Industry Classification System.
    This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table lists the types of entities that the EPA is now aware could potentially be regulated by this action. Other types of entities not listed in the table could also be regulated. To determine whether your entity may be affected by this action, you should carefully examine the applicability criteria found in 40 CFR 63.1620 of Title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section. B. What action is the agency taking?

    In this action, in response to petitions for reconsideration from Eramet Marietta Inc. (Eramet) and Felman Production LLC (Felman), the EPA is granting reconsideration of and requesting comment on the following three provisions of the final rule: (1) The requirement to conduct PAH performance testing every 3 months for furnaces producing FeMn for the first year with the opportunity to reduce to annual testing after the first year; (2) the requirement to demonstrate compliance with the shop building opacity standards using DCOT in accordance with American Society for Testing and Materials (ASTM) D7520-13; and (3) the requirement to monitor positive pressure baghouse emissions using BLDS. As described in detail in Section II of this preamble, one or both of the petitioners requested EPA reconsider these three provisions.

    This action is limited to the specific three provisions identified previously. Another issue raised by Eramet in their petition concerned the method we used to calculate the PAH emission limits. The EPA is deferring any decisions regarding whether to grant or deny reconsideration of this issue, and we are not reopening comment at this time on this issue. We will determine whether to grant or deny reconsideration of the PAH emission calculation issue no later than when we take final action on the three provisions we are reopening in this action.

    We will not respond to any comments addressing any other provisions not being reconsidered in the final Ferroalloys Production NESHAP. Furthermore, the EPA is not proposing any changes to the NESHAP in this action.

    C. What is the agency's authority for taking this action?

    The statutory authority for this action is provided by sections 112 and 307(d)(7)(B) of the Clean Air Act (CAA) as amended (42 U.S.C. 7412 and 7607(d)(7)(B)).

    D. What are the incremental cost impacts of this action?

    There are no changes to the estimated incremental cost impacts that were presented in the Ferroalloys Production RTR final rule published in the Federal Register on June 30, 2015, (80 FR 37366) in this action. These incremental impacts were described in detail in the Final Cost Impacts of Control Options Considered for the Ferroalloys Production NESHAP to Address Fugitive HAP Emissions (see EPA-HQ-OAR-2010-0895-0301) and the Economic Impact Analysis (EIA) for the Manganese Ferroalloys RTR Final Report (see EPA-HQ-OAR-2010-0895-0290).

    II. Background

    Section 112 of the Clean Air Act (CAA) establishes a two-stage regulatory process to address emissions of hazardous air pollutants (HAP) from stationary major sources. In the first stage, sections 112(d)(2) and (3) require EPA to promulgate national technology-based emission standards for these sources based on maximum achievable control technology (MACT). These standards are commonly called MACT standards. The EPA finalized the MACT standards for Ferroalloys Production on May 20, 1999 (64 FR 27450). In the second stage, section 112(f) of the CAA requires EPA to assess the risks to human health remaining after implementation of the MACT standards. In addition, section 112(d)(6) of the CAA requires EPA to review and revise these MACT standards, as necessary, taking into account developments in practices, processes, and control technologies since EPA promulgated the original standards. The CAA requires EPA to conduct these reviews within 8 years of the publication of the final MACT standards. The EPA typically conducts the two reviews, commonly referred to as the risk and technology reviews (RTRs), concurrently, as we did with the Ferroalloys Production source category. The EPA completed the RTR for the Ferroalloys Production in 2015 and published a final RTR rule for the Ferroalloys Production source category in the Federal Register on June 30, 2015 (80 FR 37366), which included, among other things, the following:

    • Revisions to the emission limits for particulate matter (PM) from stacks for the electric arc furnaces (EAF), metal oxygen refining (MOR) processes, and crushing and screening operations, to minimize PM emissions from these units;

    • Emission limits for four previously unregulated hazardous air pollutants (HAP): Formaldehyde, hydrogen chloride, mercury, and PAH;

    • Requirements to capture process fugitive emissions using effective, enhanced local capture, and duct the captured emissions to control devices;

    • An average opacity limit of 8 percent during a full furnace cycle, and a maximum opacity limit of 20 percent for the average of any two consecutive 6-minute periods, to ensure effective capture and control of process fugitive emissions;

    • A requirement to conduct opacity observations using the DCOT at least once per week for a full furnace cycle for each operating furnace and each MOR operation for at least 26 weeks. After 26 weeks, if all tests are compliant, facilities can decrease to monthly opacity observations;

    • A requirement to use BLDS to monitor PM emissions from all furnace baghouses; and

    • A requirement to conduct periodic performance testing to demonstrate compliance with the stack emission limits for the various HAP, including a requirement to conduct PAH performance testing every 3 months for furnaces producing FeMn for the first year with the opportunity to reduce to annual testing after the first year.

    Following promulgation of the final rule, the EPA received two petitions for reconsideration of several provisions of the NESHAP pursuant to CAA section 307(d)(7)(B). The EPA received a petition dated August 25, 2015, from Eramet, and a petition dated August 28, 2015, from Felman. In the petition submitted by Eramet, the company requested that the EPA reconsider the following provisions: (1) The requirement to conduct PAH performance testing every 3 months for furnaces producing FeMn; (2) the requirement to demonstrate compliance weekly with shop building opacity limits using the DCOT in accordance with ASTM D7520-13; and (3) the PAH emission limits for existing furnaces producing FeMn and silicomanganese (SiMn). In addition, the company requested a stay of 90 days from the effective date of the final amendments pending completion of the reconsideration proceeding. In the petition submitted by Felman, the company stated that they support and adopt the petition submitted by Eramet and requested reconsideration of the requirement to use BLDS to monitor emissions from positive pressure baghouses. Copies of the petitions are provided in the docket (see EPA-HQ-OAR-2010-0895).

    On November 5, 2015, the EPA sent letters to the petitioners granting reconsideration of the PAH compliance testing frequency issue raised by Eramet and the use of BLDS on positive pressure baghouses raised by Felman. In those letters, the EPA said we were continuing to review the other issues and intend to take final action on those issues no later than the date we take final action on the PAH testing frequency and BLDS issues. The agency also stated in the letters that a Federal Register action would be issued initiating the reconsideration process for the issues on which the EPA is granting reconsideration, which is what we are doing here with publication of this action.

    In addition to the two requirements mentioned previously (i.e., regarding PAH testing frequency for furnaces producing FeMn and the use of BLDSs to monitor PM emissions from positive pressure baghouses) for which the EPA granted reconsideration via letters, after further review and consideration, the EPA has also decided to grant reconsideration of the requirement to use DCOT in accordance with ASTM D75520-13 to demonstrate compliance with shop building opacity standards. However, for each of these three requirements, after further analyses, evaluation, and consideration, we continue to believe these requirements are appropriate. Therefore, in this action, we are not proposing any changes to these requirements. Instead, we are providing further discussion and explanation as to why we believe it is appropriate to maintain these requirements in the rule, providing additional technical information to support our decisions, and requesting comment on these three requirements for which the EPA is granting reconsideration. If a commenter disagrees with our assessment of these issues, we encourage the commenter to provide a detailed technical explanation as to why they disagree and provide supporting information. Furthermore, if a commenter recommends any changes to the three rule requirements addressed in this action, we encourage the commenter to describe the specific rule changes they recommend and an explanation as to why they recommend such changes.

    III. Discussion of the Issues Under Reconsideration A. Quarterly PAH Testing for Furnaces Producing FeMn

    In the 2014 supplemental proposal, which was published in the Federal Register on October 6, 2014 (79 FR 60238), the EPA proposed an emission limit of 1.4 milligrams per dry standard cubic meter (mg/dscm) for PAHs from existing furnaces producing FeMn based on two emissions tests (with a total of six runs). The EPA based the limit on the only valid PAH data we had for FeMn producing furnaces during the development of the supplemental proposed rule. We received an additional test report in August 2014 (a few weeks before signature of the supplemental proposed rule) that included data from one additional emissions test (with three runs). However, we were not able to incorporate that additional data into our analyses for the supplemental proposal. As we explained in the supplemental proposal, we had not yet completed our technical review of those new data and we were not able to incorporate those new data into our analyses in time for the completion of the supplemental proposal. However, we did seek comments on that data.

    After publication of the supplemental proposal, we received additional data during the comment period that included one additional emissions test for PAHs, with four runs.

    In the development of the final rule, after we completed our technical review of all the data, we incorporated the additional data into our analyses such that the PAH limit for furnaces producing FeMn was based on four emissions tests (with a total of 13 runs). As we explained in the final rule preamble, the additional data we received just before signature of the supplemental proposal and again during the comment period indicated PAH emissions from furnaces producing FeMn were much higher than indicated by the data we had prior to August 2014. For example, the PAH concentrations for furnaces producing FeMn in these additional test reports were over 12 times higher than in previous test reports submitted by Eramet (as shown in appendix A of the Revised MACT Floor Analysis for the Ferroalloys Production Source Category document, which is available in the docket).

    To calculate the MACT floor emissions limit for the final rule, we incorporated all the data (13 runs) and applied our standard 99 percent upper prediction limit (UPL) methodology. Using the UPL methodology resulted in a MACT floor emissions limit of 12 mg/dscm, which was 9 times higher than the MACT floor limit of 1.4 mg/dscm we had proposed in 2014.

    With regard to testing frequency, in the 2014 supplemental proposal, we proposed that compliance testing for PAHs from furnaces producing FeMn be conducted at least once every 5 years. However, as we explained in the final rule preamble, due to the large variation in PAH emissions from these furnaces during FeMn production, we required quarterly compliance testing for PAHs (i.e., at least one PAH compliance test every 3 months) for furnaces while producing FeMn in the final rule, with an opportunity for facilities to request decreased frequency of such compliance testing (e.g., to annual testing) from their permitting authority after the first year.

    In their petition, Eramet stated that “without warning, in the final Ferroalloys NESHAP, EPA increased the compliance test frequency for PAH emissions from ferroalloys production by 20 times.” Specifically, the petitioner asserted that in the 2014 supplemental proposal, the EPA proposed PAH compliance testing every 5 years, which the petitioners considered appropriate, and, therefore, they did not comment on the provision. For the 2015 final rule, the EPA increased the PAH compliance testing frequency to quarterly, which the petitioners believe is a surrogate for information collection and not an appropriate use of the rulemaking process. The petitioners also stated that the increased PAH testing frequency increases compliance costs (by about $75,000 for the first year) and increases penalty risks.

    After considering the petition from Eramet, the EPA is not proposing any changes to the testing frequency in this action.

    However, in consideration of the fact that the public lacked the opportunity to comment on the change in testing frequency, the EPA has granted reconsideration of this issue to provide an opportunity for public comment on the testing frequency. We are proposing no change to the quarterly testing for PAH for furnaces producing FeMn due to the high variability of the PAH test data and the fact that the new data were much higher than the previous data. The inclusion of these data increased the MACT emissions limit for PAHs (which was based on the 99 percent UPL) for furnaces producing FeMn in the 2015 final rule by about 9 times compared to the MACT limit proposed in the 2014 supplemental proposal. In contrast, the PAH concentrations for furnaces producing SiMn were only slightly higher than previous test data received from the facilities. Furthermore, we believe the quarterly testing, along with the collection of process information that a facility may choose to collect voluntarily, could provide data that would help facilities learn what factors or conditions are contributing to the quantity and variation of PAH emissions. For example, among other things, we believe the collection and analyses of information about the amounts and types of input materials, types of electrodes used, electrode consumption rates, furnace temperature, and other furnace, process, or product information may help facilities understand what factors are associated with the higher emissions and could provide insight regarding how to limit these emissions. Furthermore, as we described in the preamble of the final rule (80 FR 37383), if a facility decides to apply for decreased frequency of compliance testing from their permit authority, this type of information (described previously) could be helpful input for such an application.

    In addition, we believe initial quarterly PAH compliance testing will help ensure that the public is not exposed to high concentrations of PAH due to emissions from these facilities. By retaining frequent testing with the ability to reduce the frequency of testing with compliant results, the rule ensures adequate protection of the public while providing an additional incentive for the source to promptly achieve compliance with the new MACT emission limit.

    While we are not proposing any changes to the testing frequency for PAHs from FeMn furnaces, we seek comment on whether the goals of gaining a further understanding of factors influencing emissions, incentivizing prompt compliance, and ensuring minimizing public exposures to PAH emissions can be achieved with a slightly different testing frequency such as semiannual testing for 2 years with an opportunity to reduce frequency thereafter to annual testing.

    B. DCOT Opacity Compliance Demonstration

    In the 2014 supplemental proposal), we proposed that facilities would need to take opacity readings for an entire furnace cycle once per week per furnace using Method 9 or DCOT to demonstrate compliance with the opacity limits. However, in the supplemental proposal, we also said we were seeking comments on the feasibility and practice associated with the use of automated opacity monitoring with ASTM D7520-13, using DCOT to assess the opacity of visible emissions from roof vents associated with the processes at each facility, and how this technology could potentially be included as part of the requirements in the NESHAP for ferroalloys production sources.

    In the final rule, we explained that after considering public comments, we decided to require DCOT, rather than allow its use as an option, and maintained the same frequency as proposed for Method 9, at least for the first 26 weeks. Therefore, the final rule includes a requirement to conduct opacity observations using the DCOT at least once per week for a full furnace cycle for each operating furnace and each MOR operation for at least the first 26 weeks. After 26 weeks, if all tests are compliant, the final rule allows facilities to decrease to monthly opacity observations.

    In their reconsideration petitions, the petitioners stated the EPA solicited comment on the use of DCOT for determining opacity from the shop building in the 2014 supplemental proposal, but did not propose to require DCOT in accordance with ASTM D7520-13 as the sole method of demonstrating compliance with the opacity standard. In their supplemental proposal comments (see EPA-HQ-OAR-2010-0895-0269 and -0272), the petitioners stated that the EPA had provided insufficient description of what might be required to employ DCOT on the shop buildings, and argued that DCOT was an unproven substitute for EPA Method 9 measurements. They also commented that the open roof monitors in the shop building create variability in plume location and orientation, which they believed would make DCOT infeasible or too costly.

    In their reconsideration petitions, the petitioners claimed that the referenced ASTM method expressly applies to stack openings of 7 feet in diameter or less, whereas the shop building open roof monitors at the facilities stretch along the top of the roofline and are hundreds of feet long. They also noted that only one vendor provides DCOT and that the vendor would be free to charge the facilities whatever prices they want.

    After considering the petitions from Eramet and Felman, and after gathering, reviewing, and evaluating additional information, the EPA is not proposing any changes to the requirements for demonstrating compliance with the opacity limits. The EPA continues to believe it is appropriate to require ferroalloys production facilities to conduct opacity observations using the DCOT at least once per week for a full furnace cycle for each operating furnace and each MOR operation for at least the first 26 weeks. However, we are seeking comments on this DCOT monitoring requirement and the additional information and analyses which are described in the following paragraphs.

    First, we have gathered and reviewed additional information that shows that opacity readings using DCOT are statistically equivalent to EPA Method 9 opacity readings, including several studies from government agencies and other organizations,1 2 which compare Method 9 to DCOT. Each of these studies determined that DCOT is statistically equivalent to EPA Method 9 when measuring nonzero visible emissions. We have also reviewed the results of Method 301 evaluations where DCOT was used to measure opacity of emissions from stacks greater than 7 feet in diameter and exiting along rooflines (see the Statistical Comparison of ASTM D7520 to EPA Reference Method 9 on Opacity from Stacks with Diameters Over 7 Feet, by Hicks, S., et. al., August 28, 2015, which is available in the docket for this action). These Method 301 studies showed no statistical difference between the opacity measured using DCOT and EPA Method 9, regardless of the stack diameter. In addition, we have learned that ASTM International is currently revising the DCOT test method (ASTM D7520-13) to remove the provision limiting application to stacks with diameters of 7 feet or less. While DCOT has a record of accuracy comparable to Method 9, it also offers the distinct advantage of generating a permanent record of the observation. This will be advantageous to the facility, oversight authorities, and affected third parties (such as the community) if there is a dispute about the facility's emissions. Opacity measurement using DCOT offers measurements that are statistically as accurate as Method 9, creates a permanent record of opacity measurements, and presents a scientifically defensible approach for opacity determination.

    1 Air Force Research Laboratory, An Alternative To EPA Method 9—Field Validation Of The Digital Opacity Compliance System (DOCS): Results From The One-Year Regulatory Study, August 2005. AFRL-ML-TY-TR-2006-4515.

    2 Electric Power Research Institute (EPRI), Digital Camera Opacity Technique: Field Test Evaluation Report, Technical Update, June 2014. 1023954.

    Regarding the comment that there is only one vendor, we believe there will be an increase use of DCOT in the future and an increased market and therefore other vendors will begin offering these services. We believe that once other vendors learn that EPA is starting to require DCOT in various rules and other actions, that other vendors will become available, which will likely keep prices approximately the same, or possibly lower. We are not aware of any evidence that the vendor has raised, or will raise, its prices due to the Ferroalloys Production final rule.

    C. BLDS on Positive Pressure Baghouses

    In the 2014 supplemental proposal, we proposed that furnace baghouses would be required to be equipped with BLDS. In response to the supplemental proposal, Felman commented that the existing positive pressure baghouses and the baghouse monitoring system at the Felman site constrain the kinds of monitoring and monitoring systems that Felman can use, and that BLDS had never been demonstrated on a positive-pressure baghouse. Felman requested that the EPA not require BLDS on their baghouses because they claimed this would effectively require Felman to replace its existing control system with a negative-pressure baghouse simply to meet the baghouse monitoring requirement. In response to this comment, we explained that the EPA has knowledge of BLDS being used on positive pressure baghouse systems, including those baghouses with large area roof emissions points. A change to a negative pressure baghouse would not be necessary. Manufacturers of BLDSs provide information on how best to deploy their instruments on the outlet of a positive pressure baghouse.

    In their petition, Felman asserted that the EPA did not provide any information regarding the use of BLDS on positive pressure baghouses. The commenter stated that in the Response to Comment document,3 the EPA claimed that they had knowledge of BLDS being used on positive pressure baghouses and that the facility should check with manufacturers of BLDS for how best to comply. However, the petitioner stated that this knowledge is not included in the record, and the most current published EPA technical guidance on this topic stated that BLDS is not appropriate for positive pressure baghouses. In addition, the petitioner claimed the EPA had not evaluated the costs associated with this application and estimated the cost to be comparable with BLDS for negative pressure baghouses. The petitioner also noted that the EPA's supplemental proposal did not require continuous baghouse monitoring for baghouses used to control fugitive emissions. However, the petitioner stated that the baghouses used to control fugitive emissions at their facility also control emissions from the furnace.

    3 See EPA-HQ-OAR-2010-0895-0302.

    After considering the petition from Felman, and after gathering, reviewing, and evaluating additional information, the EPA is not proposing any changes to the requirement in the rule that baghouses be equipped with BLDS. The EPA continues to believe it is appropriate to require BLDS to monitor PM emissions from all furnace baghouses. However, we are seeking comments on this BLDS requirement and on the additional information we are adding to the record, as described in the following paragraph.

    We are providing additional supporting information on the use of BLDSs on positive pressure baghouses to the record. This includes technical articles 4 5 on the installation and operation of BLDS on positive pressure baghouses, and correspondence with manufacturers and installers with experience installing BLDS on positive pressure baghouses (see the Positive Pressure Baghouse Bag Leak Detection Information Memorandum which is available in the docket for this action). In addition, we have corresponded with facilities that have installed and operated BLDS on their positive pressure baghouses (see the Positive Pressure Baghouse Bag Leak Detection Information Memorandum which is available in the docket for this action). Based on this information, we have found no technical or economic basis for removing the BLDS requirement from the final rule. The monitoring requirement for furnace baghouses is intended to ensure continuous compliance with the PM standards in the final rule, which are surrogate standards for metal HAP emitted from the furnaces.

    4 Iron and Steel Technology, Practical Application of Broken Bag Detector Technology for Compliance and Maintenance: Under the Steelmaking Electric Arc Furnace New Source Performance Standards and the Iron and Foundry NESHAP, April 2005.

    5 Babcock & Wilcox, Fabric Filter Leak Detector Setup and Use, August 2014. Technical Paper BR-1920.

    As mentioned previously, we are seeking comments on the BLDS requirement along with data and other information to support such comments. If a commenter disagrees with our assessment regarding feasibility of BLDS on specific types of baghouses, we encourage such commenters to provide a detailed technical explanation and information to support such comments. Furthermore, in this case, we would also request the commenter to provide detailed suggestions as to what alternative monitoring actions could be implemented (instead of BLDS) to ensure continuous compliance with the PM standards.

    IV. Impacts of This Action A. Economic Impacts

    The EPA does not expect any significant economic impacts as a result of this rule reconsideration. The rule provisions that are being reconsidered in this action were already included in the Economic Impact Analysis for the final rule. Changes to the final rule as a result of this reconsideration, if any, would likely result in lower economic costs and impacts rather than higher costs and impacts.

    B. Environmental Impacts

    The EPA does not expect any significant environmental impacts as a result of the reconsideration of the three rule provisions identified in this action, especially since the EPA is not proposing any changes to these provisions. The issues being reconsidered are monitoring and compliance testing issues and, therefore, should not have any effect on the estimated emissions or emission reductions from what we estimated in the final rule.

    V. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866: Regulatory Planning and Review, and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.

    B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2060-0676. This proposal document provides reconsideration of three issues raised by petitioners on the final rule, but does not make revisions to the requirements in the final rule. Therefore, this action does not change the information collection requirements previously finalized and, as a result, does not impose any additional burden on industry.

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. The agency has determined that neither of the companies affected by this proposed reconsideration document is considered to be a small entity.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 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.

    E. Executive Order 13132: Federalism

    This 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.

    F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications as specified in Executive Order 13175. There are no ferroalloys production facilities that are owned or operated by tribal governments. Thus, Executive Order 13175 does not apply to this action.

    G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The health risk assessments completed for the final rule are presented in the Residual Risk Assessment for the Ferroalloys Source Category in Support of the 2015 Final Rule document, which is available in the docket for this action (EPA-HQ-OAR-2010-0895-0281), and are discussed in section V.G of the preamble for the final rule (80 FR 37366).

    H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

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

    I. National Technology Transfer and Advancement Act (NTTAA)

    This action involves technical standards. In the final rule for this source category, the EPA decided to use ASTM D7520-13, Standard Test Method for Determining the Opacity in a Plume in an Outdoor Ambient Atmosphere, for measuring opacity from the shop buildings. This standard is an acceptable alternative to EPA Method 9 and is available from the American Society for Testing and Materials (ASTM), 100 Barr Harbor Drive, Post Office Box C700, West Conshohocken, PA 19428-2959. See http://www.astm.org/. For this proposed reconsideration action, the EPA has agreed to reconsider the use of ASTM D7520-13 as the only method to be used to measure opacity from the shop buildings.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes that 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 in Executive Order 12898 (59FR 7629, February 16, 1994) because it does not affect the level of protection provided to human health or the environment. This action only includes reconsideration of certain issues of the final rule that will not affect the emission standards that were finalized on June 30, 2015.

    List of Subjects in 40 CFR Part 63

    Environmental protection, Administrative practice and procedures, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.

    Dated: June 30, 2016. Gina McCarthy, Administrator.
    [FR Doc. 2016-16450 Filed 7-11-16; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 4 [PS Docket No. 15-80, 11-82; FCC 16-63] Disruptions to Communications AGENCY:

    Federal Communications Commission.

    ACTION:

    Proposed rule.

    SUMMARY:

    In this document, the Federal Communications Commission (Commission) seeks comment on: A proposal to update the Commission's outage reporting requirement rules to address broadband network disruptions, including packet-based disruptions based on network performance degradation; proposed changes to the rules governing interconnected voice over Internet protocol (VoIP) outage reporting to include disruptions based on network performance degradation, update our outage definition to address incidents involving specified network components; and modify the reporting process to make it consistent with other services; reporting of call failures in the radio access network and local access network, and on geography-based reporting of wireless outages in rural areas; and, refining the covered critical communications at airports subject to the Commission's outage reporting requirements.

    DATES:

    Submit comments on or before August 26, 2016, and reply comments on or before September 12, 2016.

    ADDRESSES:

    You may submit comments, identified by PS Docket No. 15-80 and 11-82, by any of the following methods:

    Federal Communications Commission's Web site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting comments.

    • Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. See the SUPPLEMENTARY INFORMATION Section for more instructions.

    People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: [email protected] or phone: 202-418-0530 or TTY: 202-418-0432.

    For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION Section of this document.

    FOR FURTHER INFORMATION CONTACT:

    Brenda D. Villanueva, Attorney Advisor, Public Safety and Homeland Security Bureau, (202) 418-7005, or [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Further Notice of Proposed Rulemaking (FNPRM), FCC 16-63, adopted May 25, 2016, and released May 26, 2016. The full text of this document is available for inspection and copying during normal business hours in the FCC Reference Center (Room CY-A257), 445 12th Street SW., Washington, DC 20554 or via ECFS at http://fjallfoss.fcc.gov/ecfs/. The full text may also be downloaded at: https://apps.fcc.gov/edocs_public/attachmatch/FCC-16-63A1.pdf.

    Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

    Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.

    Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

    Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

    • All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

    • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.

    • U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.

    People with Disabilities: 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).

    Synopsis of Further Notice of Proposed Rulemaking

    In this document, the Federal Communication Commission (Commission) seeks comment on proposals to modernize its outage reporting rules to increase its ability to detect adverse outage trends and facilitate industrywide network improvements. The Commission seeks comment on whether and how to update its part 4 outage reporting requirements to address broadband, an increasingly essential element in our nation's communications networks, along with other streamline proposals. This action seeks to ensure that the outage reporting system keeps pace with technological change and addresses evolving consumer preference impact in order to be better equipped to promote the safety of life and property through the use of wire and radio communication.

    In a companion document, a Report and Order and Order on Reconsideration in PS Docket No. 15-80, and ET Docket No. 04-35, respectively, the Commission adopts several proposals in a Notice of Proposed Rulemaking in 2015, and resolves several outstanding matters related to its adoption of the part 4 rules in a Report and Order in 2004.

    I. Further Notice of Proposed Rulemaking

    1. As service providers transition from legacy network facilities to IP-based networks, the Commission must continue to safeguard the reliability and resiliency of all of these interrelated systems. As we have observed before, broadband networks and services increasingly characterize the environment for the nation's 9-1-1 and NG911 emergency communications and, thus, are central to the nation's emergency preparedness, management of crises, and essential public safety-related communications. To meet the challenge of assuring broadband networks in order to carry out its foundational public safety mission, the Commission must maintain visibility into TDM-based networks while simultaneously ensuring similar visibility into commercial IP and hybrid networks. Our current part 4 rules establish outage reporting requirements that are in many ways centered on “circuit-switched telephony” and circuits that involve a “serving central office.” The proposals in this FNPRM, among other things, aim to update the part 4 rules to ensure reliability of broadband networks used to deploy critical communications services, used both for emergency and non-emergency purposes. As discussed below, we believe the part 4 rules can likely provide the Commission with the necessary situational awareness about these broadband networks by updating them to (1) extend their application to broadband Internet access services (BIAS), and (2) revising the manner in which they apply to existing and future dedicated services to ensure a broadband emphasis. In this FNPRM, we propose to use the term “dedicated service” to refer to those services defined in 2013's Special Access Data Collection Implementation Order, i.e., “service that `transports data between two or more designated points, e.g., between an End User's premises and a point-of-presence, between the central office of a local exchange carrier (LEC) and a point-of-presence, or between two End User premises, at a rate of at least 1.5 Mbps in both directions (upstream/downstream) with prescribed performance requirements that include bandwidth, latency, or error-rate guarantees or other parameters that define delivery under a Tariff or in a service-level agreement.' ”).These actions, we believe, will ensure that the Commission's ability to monitor communications reliability and resiliency keeps pace with technological change and the broadband-based capabilities and uses of today's evolving networks.

    2. More specifically, we: (i) Seek comment on proposed reporting requirements, metrics, and narrative elements for both BIAS and dedicated services outages and disruptions, including for network performance degradation; and (ii) propose to amend the Commission's existing outage reporting requirements for interconnected VoIP to reflect disruptions resulting from network performance degradation. In addition, we seek further comment on two proposals raised in the Notice and aimed at increasing our awareness of certain outages: (i) Reporting call failures in both the wireless and wireline/interconnected VoIP access networks; and (ii) reporting outages that affect large geographic areas but do not trigger the user-minute threshold because of sparse population. We also seek comment on establishing outage reporting triggers for certain airport communications assets (“special offices and facilities”) designated as TSP Level 3 and Level 4 facilities. Finally, we seek to determine the most cost-effective approaches to accomplish these objectives, and accordingly seek comment on potential costs and benefits associated with each proposal in the FNPRM. To that end, commenters should provide specific data and information, such as actual or estimated dollar figures, and include any supporting documents and descriptions of how any data was gathered and analyzed.

    3. The nation's transition from legacy (i.e., TDM-based) communications platforms to IP for communications services has been steadily progressing since the last time the Commission expanded its outage reporting requirements to include “newly emerging forms of communication” in 2004. For one thing, consumers have significantly increased their dependence on broadband networks. Beyond consumer technologies, important sectors are relying increasingly on interconnected VoIP and broadband services. Indeed, in 2016, broadband service is a central part of most Americans' lives.

    4. Reliance by enterprise customers on dedicated services also continues to increase, reflecting the rapid transition of the nation's businesses and governmental institutions to broadband powered communications. As we recently observed in the Special Access proceedings, such services are “an important building block for creating private or virtual private networks across a wide geographic area and enabling the secure and reliable transfer of data between locations.” They can also “provide dedicated access to the Internet and access to innovative broadband services.” They are used by mobile wireless providers to backhaul voice and data traffic from cell sites to their mobile telephone switching offices. Branch banks and gas stations use such connections for ATMs and credit card readers. Businesses, governmental institutions, hospitals and medical offices, and even schools and libraries use them to create their own private networks and to access other services such as Voice over IP (VoIP), Internet access, television, cloud-based hosting services, video conferencing, and secure remote access. Carriers buy them as a critical input for delivering their own customized, advanced service offerings to end users. We believe it is critical that our outage reporting rules, long applicable to communications services such as special access, continue to provide an appropriate measure of network resiliency, reliability and security assurance for today's and tomorrow's broadband network services.

    5. The Commission has long recognized the importance of these trends for outage reporting. In 2010, the National Broadband Plan called on the Commission to extend part 4 outage reporting rules to broadband Internet service providers and interconnected VoIP service providers, citing a “lack of data [that] limited our understanding of network operations and of how to prevent future outages.” The following year, the Commission proposed to safeguard reliable 911 service by extending outage reporting rules to broadband Internet access service (BIAS) and backbone Internet service as well as interconnected VoIP service. In the 2012 Part 4 VoIP Order, the Commission adopted rules to extend reporting requirements to interconnected VoIP service providers for outages resulting in a complete loss of service, but deferred action on the remaining proposals. At the time, the Commission indicated that its proposals to extend outage reporting obligations to broadband providers “deserve[d] further study.”

    6. Numerous commenters in this and other proceedings have urged the Commission to closely monitor changes in network reliability as 911 networks migrate to IP, and others assert that some communities are increasingly dependent upon robust mobile broadband connectivity to deliver, in part, public safety services necessary for modern life. As federal funds are spent to ensure deployment of broadband, e.g., through programs such as the Connect America Fund, we expect recipients of these funds to build out networks that serve the public interest through reliable access to critical communications, e.g., 911. The U.S. Government Accountability Office (GAO) recognized that “[t]he communications sector is transitioning from legacy networks to an all-Internet Protocol (IP) environment, leading consumer and public safety groups, among others, to question how reliably the nation's communications networks will function during times of crisis.” Echoing the Broadband Opportunity Council, in its 2015 report GAO questioned whether the Commission can currently fulfill its information needs through existing efforts to collect comprehensive, nationwide data on technology transitions, and recommended that we develop a strategy and gather information on the “IP transition to assess its potential effects on public safety and consumers.” It also noted that this “would help [the Commission] address these areas of uncertainty as it oversees the IP transition,” and enable “data-driven decisions.” We agree and seek comment below on mechanisms to improve the quantity and quality of data collected on the impact of increased broadband availability and usage.

    7. In the fulfillment of its public safety responsibilities, no context is more important for the Commission to research and monitor the technology transition than in the deployment of IP-based Next Generation 911 (NG911) networks. NENA's i3 architecture has become the de facto standard for NG911 network design, in which voice, text, and data communications to, from, and between PSAPs operate over an Emergency Services IP network (ESINet). The Commission has observed that “new capabilities will enhance the accessibility of 911 to the public (e.g., by enabling video and text-to-911 for persons with speech and hearing disabilities), and will provide PSAPs with enhanced information that will enable emergency responders to assess and respond to emergencies more quickly.” Service providers typically market such improvements to 911 as a way to offer better service at lower cost and an opportunity to phase out obsolete technologies.

    8. Nevertheless, we acknowledge that “evolving technology, while providing many benefits to PSAPs and the public, also has introduced new and different risks.” For example, 911 service can now be disrupted by software malfunctions, database failures, and errors in conversion from legacy to IP-based network protocols, and such disruptions can occur in unique parts of the IP network that lack analogous counterparts in legacy architecture. Moreover, the consolidation of critical resources in a small number of databases increases the risk of a 911 service failure that affects many PSAPs at once, even across state lines or potentially impacting all of a service provider's customers nationwide. Given the growing deployment of ESINets and the Commission's specific interest in monitoring the reliability and resiliency of PSAP connectivity, we believe that it is critical for the Commission to have visibility into the networks of all providers supporting ESINet service and other critical infrastructure to fully understand reliability and resiliency factors associated with public safety and critical infrastructure communications.

    9. For both emergency and non-emergency services, broadband is now (or rapidly is becoming) the communications sector's essential transmission technology and, thus, “an integral component of the U.S. economy, underlying the operations of all businesses, public safety organizations, and government.” These communications sector developments, both in NG911 deployment and in the nation's communications sector more broadly, illustrate how important it is that the Commission's outage reporting requirements evolve at a similar pace as the communications sector. As 911 services evolve toward NG911 combinations of voice, data, and video, and as voice and data are exchanged over the same infrastructure, it is necessary for the Commission to refocus its lens for outage reporting and re-examine its part 4 reporting metrics to ensure that they collect the necessary data on the reliability of broadband networks. Access to such objective information would ensure that the evolution of critical communications services does not pose an obstacle to the Commission's established consumer protection, public safety, and national security statutory missions.

    A. Broadband Network Outage Reporting 1. The Need for Updated Broadband Network Disruption and Outage Reporting

    10. Broadband networks now provide an expanding portion of today's emergency and non-emergency communications and have technological flexibility that allows service providers to offer both old and new services over a single architecture. We observe that broadband networks come with their own advantages and challenges; particularly, outages and service disruptions can occur at both at the physical infrastructure and the service levels. We recognize that network outage or service disruptions at the application level in which various services are provided (e.g., streaming video, video teleconferencing) have different performance and network management requirements than those at the physical network infrastructure level. Broadband networks are just as vulnerable to physical outages and service disruptions as the public-switched telephone network (PSTN), but are also susceptible to attacks at the application layer, which may not affect the underlying physical infrastructure. We seek comment on these observations as they relate to our proposed broadband outage reporting requirements.

    11. We further observe that broadband networks' interrelated architectural makeup renders them more susceptible to large-scale service outages. Growing reliance on remote servers and software-defined control has increased the scale of outages, as compared to those in the legacy circuit switched-environment. Through news accounts, we have observed recent outage events impacting customers across several states. Moreover, broadband networks' architectural efficiencies can actually magnify the impact of customer service-affecting outages that do occur. For example, “sunny day” outages—caused by technical issues rather than by environmental ones—have been shown to jeopardize 911 communications services, sometimes across several states. Indeed, broadband networks can support centralized services, but, if not engineered well, they can harm resiliency objectives. We believe that these challenges will likely become more pronounced as broadband increasingly comes to define the nation's communication networks. This new paradigm of larger, more impactful outages suggests that there would be significant value in collecting data on outages and disruptions to commercial broadband service providers. We seek comment on this view.

    12. Given the potential for broad-scale, highly-disruptive outages in the broadband environment—and particularly those impacting 911 service—the adoption of updated broadband reporting requirements would likely provide the Commission with more consistent and reliable data on critical communications outages and enable it to perform its mission more effectively in light of evolving technologies and service offerings. Over the past decade, review and analysis of outage reports have enabled the Commission to facilitate and promote systemic improvements to reliability, both through industry outreach, the CSRIC, and formal policy initiatives. The analysis of trends identified from our authoritative outage report repository has proven to be a useful tool for the Commission in working with providers to address outages and facilitate sector-wide improvements. As NG911 functionality becomes centralized within broadband networks, network vulnerabilities specific to emergency services will emerge, and the Commission should be well-informed of such vulnerabilities. We seek comment on this position.

    a. Mandatory vs. Voluntary Reporting

    13. In the 2011 Part 4 Notice, the Commission asked whether and how outage reporting should to be extended to broadband. At the time numerous commenters challenged the idea, with some suggesting that mandatory outage reporting is not suitable for broadband packet-switched networks given built in redundancies, and the complexity of tracing disruptions to a single cause.

    14. Where the Commission has required mandatory reporting of disruptions to IP communications (such as interconnected VoIP communications), 47 CFR 4.3(h), 4.9(g), we have found substantial value from that reporting. We believe that the same is true for other IP-based networks and services that have become such a typical feature of our communications networks. Additionally, in the 2012 Part 4 Order, the Commission observed that “the record . . . reflect[ed] a willingness on the part of broadband Internet service providers to participate in a voluntary process” to improve the Commission's awareness of broadband outages and their impact on public safety. Over the past four years, broadband providers have not come forward with concrete proposals for such a process or even expressed such an interest in voluntary reporting. As with previous attempts at voluntary reporting, we are concerned that any voluntary regime for broadband outages would be unsuccessful in achieving a level of participation necessary to make the program effective. We seek comment on this position, and how to apply the lessons learned from our previous voluntary outage reporting regime. Finally, as the Commission observed in 2011, “even if incentives did motivate individual market participants to optimize their own reliability, they do not necessarily optimize systemic reliability.” We believe that mandatory reporting of broadband network outages would motivate such optimization, and, thus, would advance the public interest. We seek comment on this view.

    15. For the reasons set out above, we reaffirm our belief that mandatory reporting requirements would have a positive effect on the reliability and resiliency of broadband networks. Therefore, we tentatively conclude that broadband network outage reporting should be mandatory. We seek comment on this tentative conclusion and seek further comment on the issues first raised generally in the 2011 Part 4 Notice.

    2. Proposed Coverage of Broadband Outages

    16. In proposing updated broadband outage reporting rules, we must identify the appropriate set of broadband—and broadband-constituent—services, facilities, and infrastructure that are reasonably appropriate for reporting requirements. In the 2015 Open Internet Order, we described the broadband communications environment to include a number of different market segments and services, including arrangements underlying those services. Among other things, we drew a distinction between networks and services deploying broadband capabilities provided to consumers, those deploying such capabilities to businesses and other enterprises, and those providing Internet backbone services. And we specifically excluded from broadband Internet access service (BIAS) enterprise service offerings such as “special access services” and their functional equivalents and other non-BIAS services, e.g., Internet access, interconnection, backbone service, traffic exchange, non-BIAS data services.

    17. In the Business Data Services/Special Access NPRM, including its adjunct 2015 Data Collection, we further described the “special access” or “dedicated services” that form critical portions of the broadband ecosystem, i.e.,—links that “enabl[e] secure and reliable transfer of data between locations.” Although such services are already addressed in part 4 to some extent, which as noted above broadly defines those “communications services” subject to these rules, our part 4 reporting standards do not ensure that outage reporting illuminates broadband issues critical to functionality of these services. We believe that the public safety goals to be accomplished through Part 4 assurance for today's broadband communications world can best be advanced if we extend the scope of our rules to BIAS, for the first time, and update and clarify those requirements for dedicated services so that we receive broadband-specific outage information for those services, and that we ensure our requirements apply equally and neutrally regardless of technology or provider type. We seek comment on this view.

    18. For broadband outage reporting purposes, we believe developing reporting metrics that clearly address this functionality to be critical to our continued ability to obtain situational awareness with respect to reliability of the Nation's most important communications services. For the reasons set forth below, we tentatively conclude that the public safety goals to be accomplished through Part 4 assurance for today's broadband communications world can most reasonably be advanced by extending those rules to cover BIAS, and by updating those requirements for measuring the reliability of dedicated services. In our view, these steps are likely to provide us with most if not all of the information reasonably necessary for purposes of our Part 4 mission, while avoiding the need to subject other service providers (such as Internet backbone providers) to these reporting requirements. Our proposal will also ensure that our requirements apply equally and neutrally regardless of technology or provider type. We seek comment on these views. By taking the actions now proposed, we believe we will have the ability to ensure greater broadband network reliability, resiliency, and security. We believe, thus, that this approach would ensure comprehensive outage reporting that, for BIAS and dedicated services, would encompass: (i) All customer market segments to include—mass market, small business, medium size business, specific access services, and enterprise-class (including PSAPs, governmental purchasers, carriers, critical infrastructure industries, large academic institutional users, etc.); (ii) all providers of such services on a technology neutral basis; and (iii) all purchasers (end users) of those services without limitation. We seek comment on this view.

    a. Broadband Internet Access Service (BIAS)

    19. The Commission defines BIAS in 47 CFR 8.2(a) as:

    [a] mass-market retail service by wire or radio that provides the capability to transmit data to and receive data from all or substantially all Internet endpoints, including any capabilities that are incidental to and enable the operation of the communications service, but excluding dial-up Internet access service. This term also encompasses any service that the Commission finds to be providing a functional equivalent of the service described in the previous sentence . . . . BIAS includes those services offered over facilities leased or owned, wireless or wireline, to residences and individuals, small businesses, certain schools and libraries and rural health entities. BIAS does not include enterprise service offerings, which are typically offered to larger organizations through customized or individually-negotiated arrangements, or special access (“dedicated”) services. Some NG911 systems use BIAS to support critical functions like transmission of location information, making it of particular interest to the Commission as NG911 is rolled out. BIAS is also increasingly integral for everyday life; according to the Commission's latest broadband subscribership data, over 250,000,000 Americans purchase wireline or wireless (or both, typically) BIAS to meet an ever-expanding array of their communications needs. These services are essential for work, family and community activities, social engagements and leisure, and are increasingly vital for emergency services communications whether as voice, texting or other data transmission. Given BIAS' ubiquitous penetration throughout the American landscape and the multiple important emergency and non-emergency uses for which Americans consume BIAS, we recognize the same, if not higher, need for assurance through outage reporting under part 4 as we have long recognized for other communications services. We seek comment on this understanding and approach.

    20. Existing part 4 rules define relevant providers to include “affiliated and non-affiliated entities that maintain or provide communications networks or services used by the provider,” and require reporting of “all pertinent information on the outage.” We seek specific comment on whether BIAS providers could be used as a central reporting point for all broadband network outages, i.e., whether our part 4 assurance goals for broadband outage reporting can be effectuated through, or should be limited to, an approach in which only BIAS providers (as opposed to other entities providing networks or services) would be required to report. We ask commenters to address BIAS providers' services relationships with other providers (i.e., entities that provide IP transport underlying the BIAS offering), and particularly whether, and the extent to which they share information (formally or informally) relevant to outage reporting. Do providers typically discuss or notify each other in the event of disruptions? Do or can BIAS providers enter into service level or other agreements that contain requirements that enable them to obtain adequate information concerning the source of outages that originate with such other providers? Should our rules impose an obligation on BIAS providers to provide such information in their part 4 reports?

    21. In what way is the Commission's experience with entities that “maintain or provide communications networks or services used by the provider” (e.g., for legacy voice communications or interconnected VoIP service) instructive in its consideration of these issues associated with BIAS outage reporting? Or, are there sufficient technical or operational differences between BIAS and entities already covered by part 4 as to warrant a new approach? If so, what are those differences and how should the Commission approach BIAS outage reporting to address those differences in ways that promote effective outage reporting? What actions could the Commission take to ensure that BIAS providers can obtain sufficient information in the event of a service outage about the source and cause of the outage? We also seek comment on whether a BIAS-only approach would sufficiently capture critical communications, i.e., communications involving critical infrastructure, needed for NS/EP, or otherwise associated with public safety or emergency preparedness. If it does not, should the Commission extend its reporting requirements directly to other entities that maintain or provide communications networks or services used by the BIAS provider?

    b. Dedicated Services

    22. In our Dedicated Services/Special Access proceeding, we have closely examined the evolving (in terms of scope, array and use of services) and expanding (in terms of participants, including new entrants) market for IP- and other data protocol-based packet services to enterprises and other segments and purchasers not included within the mass market level served by BIAS providers. These dedicated services power the fullest range of large data pipe (high capacity) services, e.g., circuit-based TDM facilities like DS3s, or data network transmission (packet-based) facilities such as “Ethernet”, and are deployed without geographic restraint (i.e., in use for “last mile”, “middle mile”, “long haul”, etc.). Although DS3s and DS1s, both of which are longstanding dedicated services “warhorses”, have always been subject to outage reporting (as have other “two-way voice and/or data communications”, 47 CFR 4.3(b)), our reporting rules may provide insufficient clarity as to non-TDM dedicated services such as “Ethernet.” We seek to provide both broadband-specific reporting emphasis and scope of covered services clarity in this FNPRM. In the past, our rules and reporting emphasis under part 4 have been framed mostly by reference to legacy TDM special access circuits, which is certainly a segment of the services and infrastructure properly classified as “dedicated services.” In this FNPRM, we now place clearer emphasis on broadband outages through new proposed metrics, thresholds and triggers, and also take steps to ensure all dedicated services providers—old and new—understand their compliance obligations under our rules.

    23. To achieve this clarity and emphasis, we first seek comment on the following definition of “dedicated services” for outage reporting purposes:

    Services that transport data between two or more designated points, e.g., between an end user's premises and a point-of-presence, between the central office of a local exchange carrier (LEC) and a point-of-presence, or between two end user premises, at a rate of at least 1.5 Mbps in both directions (upstream/downstream) with prescribed performance requirements that include bandwidth, latency, or error-rate guarantees or other parameters that define delivery under a Tariff or in a service-level agreement.

    In addition to commenting on this proposed definition for part 4's purposes, we ask commenters whether there are any other descriptors needed to ensure both the clarity and breadth of the services that should be included within dedicated services for part 4 reporting assurance purposes.

    24. Dedicated services are important components for creating private or virtual private networks across a wide geographic area, and for enabling the secure and reliable transfer of data between locations, including the provision of dedicated Internet access and access to innovative broadband services. Dedicated services, however,

    [are] distinctly different from the mass marketed, “best efforts” [BIAS] provided to residential end users, such as AT&T's U-verse or Comcast's XFINITY. Dedicated services typically provide dedicated symmetrical transmission speeds with performance guarantees, such as guarantees for traffic prioritization, guarantees against certain levels of frame latency, loss, and jitter to support real-time IP telephony and video applications, or guarantees on service availability and resolving outages. As such, dedicated services tends to cost substantially more than “best efforts” services and are offered to businesses, non-profits, and government institutions who need to support mission critical applications and have greater demands for symmetrical bandwidth, increased reliability, security, and service to more than one location.

    25. As with BIAS, we seek comment on the extent to which those who provide dedicated services are in a position to inform the Commission of the source and cause of reportable outages. We believe that such providers are reasonably likely to be well-informed about these questions. Dedicated services providers also provision service “solutions” for other communications providers; for example, mobile providers use dedicated services to backhaul voice and data traffic.

    26. With respect to negotiated terms and conditions for assurance, is it standard industry practice to inform dedicated services customers about the nature of any particular outage or performance issue that triggers assurance guarantees (i.e., credits)? Does this also extend to inform such customers about any non-service impacting outages, regardless of the seriousness of the outages, or to inform customers as to the provider's overall performance using an established set of metrics? For example, are dedicated service customers interested in non-service impacting outages whose notification helps inform resiliency decisions or helps inform predictive risk mitigation actions based on a larger data set of observed failure modes? If so, how are such customer needs addressed through contract negotiations or, post-contract, through course of dealing between parties or by other means (e.g., Industry Data Breach Annual Summaries, academic research, etc.)?

    27. We recognize that variation between and among dedicated services providers, the services they provide, their customers' service needs and profiles, and other factors may indicate differences that we should consider with respect to the benefits and burdens of dedicated services outage reporting. Accordingly, we seek comment on such differences, and particularly their impact on relative costs and burdens for outage reporting.

    28. In sum, to ensure the Commission can effectively discharge its public safety mandates and mission with respect to the communications networks and services upon which America's citizens, businesses and governmental organizations rely, we propose that BIAS providers be required to report outages pursuant to the Commission's part 4 rules, and we propose to update existing outage reporting metrics to reflect broadband disruptions involving dedicated services and provide clarity as to scope of covered services. We recognize that this approach may not capture the full scope of communications services, but we believe, at this time, that the costs of extending our outage reporting requirements beyond these services may exceed the benefits. We seek comment on this view. To the extent commenters believe that there are other communications providers that provide broadband-related services warranting part 4 outage reporting, we invite commenters to elaborate in detail.

    3. Proposed Reporting Process for Broadband Providers

    29. Three-part submission process. We seek comment on whether to apply the three-part structure used by other reporting entities under part 4 to covered broadband service providers. This process would require the provider to file a notification to the Commission within 120 minutes of discovering a reportable outage as further defined in Section V.B.; an initial report within 72 hours of discovery of the reportable outage; and a final report within 30 days of discovering the outage, similar to the process described in 47 CFR 4.9(a), (c)-(f) for cable, satellite, SS7, wireless, and wireline providers. Covered providers would submit all reports electronically to the Commission and include all of the information required by Section 4.11 of the Commission's rules. A notification would include: The name of the reporting entity; the date and time of the onset of the outage; a brief description of the problem, including root cause information and whether there were any failures of critical network elements, if known; service effects; the geographic area affected by the outage and a contact name and telephone number for the Commission's technical staff. We note that this notification requirement is distinct from a covered 911 service provider's obligation to notify PSAPs in the event of an outage impacting 911 service, 47 CFR 4.9(h), and we defer discussion of those notification requirements to PS Docket Nos. 13-75 and 14-193. The initial reports would include the same information, and in addition, any other pertinent information then available on the outage, as submitted in good faith. Further, the provider's final report would include all other pertinent information available on the outage, including root cause information where available and anything that was not contained in or changed from the initial report.

    30. Reporting requirements concerning critical network elements. Pursuant to the requirements of Section 4.11 of our rules, once an outage triggers a reporting requirement, there is certain information that we expect providers, acting in good faith, to include in their reports to the extent such matters are at issue in a given reportable event and the provider, through the exercise of reasonable due diligence, knows or should know the facts. We believe our concept of reportable outages must evolve as new events threaten the reliability and resiliency of communications in ways that can expose end users to serious risks, to that end we routinely update the NORS data fields to reflect changes in technology and seek to do so here. Specifically, we expect providers to include information in their reports concerning (1) the failure of facilities that might be considered critical network elements, and (2) unintended changes to software or firmware or unintended modifications to a database to the extent relevant to a given outage or service disruption that is otherwise reportable. We seek comment on this approach.

    31. We propose to consider a network element “critical” if its failure would result in the loss of any user functionality that a covered broadband provider's service provides to its end users. For example, Call Agents, Session Border Controllers, Signaling Gateways, Call Session Control Functions (CSCF), and Home Subscriber Server (HSS) could be considered “critical” network elements. And, we believe that information concerning such failures uniquely provides a sharper network and service vulnerability focus that would further the Commission's public safety and related missions by enhancing the Commission's situational awareness and network operating status awareness. We seek comment on this assessment. We seek comment on these views and on this reporting approach. Additionally, we propose that to the extent unintended changes to software or firmware or unintended modifications to a database are revealed as part of reportable disruptions, we should be apprised of those facts through the outage reports providers submit.

    32. As with events involving critical network element failure, we propose to modify the NORS interface to support information regarding outages and disruptions that are associated with unintended changes to software or firmware or unintended modifications to a database. This is consistent with our customary practice of updating NORS information fields as technologies and services evolve. Thus, if unintended changes to software or firmware or unintended modifications to a database played a role in causing an otherwise reportable outage, we would expect providers' reports to include specific detail about the nature of the associated facts. The Commission seeks comment on what information would be useful to understand these exploitations. Would it be helpful for us to use open fields so that outages can be described in terms defined by the provider acknowledging that these may differ from provider to provider? We seek comment on this approach. We recognize that unintended changes to software and firmware and unintended modifications to a database may not always manifest themselves in the form of reportable communications “outages” as traditionally defined by the Commission or as we propose for broadband outage reporting. Are there additional data drop-down menu fields we should consider beyond those proposed above that would provide significant information about broadband outages? Would it be useful to establish pre-defined elements in the reporting metrics that would provide the Commission with more consistent failure information that would improve long-term analysis about unintended changes to software and firmware or unintended modifications to a database that would not otherwise be reported to the Commission? For example should the Commission receive information on distributed denial of service (DDoS) attacks in order to support an improved correlation should multiple outages involve DDoS as a contributing factor?

    33. Should we expand our definition of Part 4 outages to include failures that are software-related or firmware-induced, or unintended modifications to a database that otherwise do not trigger hard-down outages or performance degradations as described below? For example, should a route hijacking that diverts packets to another country, but still delivers the packets to the consumer be a reportable outage? If so, we seek comment on this position. What process should be followed to make the Commission aware of such disruptions? Would such a requirement be unnecessary were the Commission to adopt proposed data breach reporting requirement proposed in the Broadband Privacy Notice of Proposed Rulemaking, WC Docket No. 16-106?

    34. We seek broad comment on updates to our traditional NORS reporting processes and expectations when reportable broadband outages involving unintended software or firmware changes or unintended modifications to a database occur. We ask commenters to address whether valid public safety, national security, economic security or other reasons support the kind of granular reporting features we now describe for broadband, and whether such reasons justify treating broadband outage reporting differently from non-broadband outage reporting. Do commenters believe that alternative approaches should be explored that could ensure that the Commission receives all useful outage and disruption causation information in a timely and cost-effective manner?

    35. Also, as discussed below, we propose to adopt the same reporting approach for interconnected VoIP providers as we have for legacy service providers (i.e., a notification, interim report and final report). We seek comment on this proposal. Alternatively, we seek comment on whether all reporting (i.e., legacy, broadband and interconnected VoIP) should be adjusted to a two-step process. Are there other similar steps that we should consider that would ensure adequate reporting in reasonable, appropriate time intervals across the various technologies at issue for reporting?

    36. We seek comment on other steps the Commission can take to make providers' reporting obligations consistent across services or otherwise streamline the process. As with other covered providers in § 4.9, we seek comment on whether 9-1-1 special facilities are served by BIAS and dedicated services providers such that a reporting requirement when 9-1-1 special facilities experiences a reportable outage or communications disruption would be warranted. Similarly, each covered provider in part 4 is required to report outages and communications disruptions to special offices and facilities (in accordance to § 4.5(a) through (d)). We seek comment on whether special offices and facilities are served by BIAS and dedicated services providers such that a reporting requirement when these experience a reportable outage or communications disruption would be warranted. One potential benefit of the transition to more advanced communications technologies is the ability to automate processes that historically have required a significant amount of manual processing. We seek comment on whether there are ways of automating the outage reporting process beyond what has been possible or has been attempted in the context of legacy communications services. How could such automated reporting be accomplished? What are the advantages of such a reporting mechanism? What are the disadvantages? What cost savings would result from any such automation?

    4. Proposed Metrics and Thresholds for Broadband Network Outage Reporting a. “Hard Down” Outage Events Metrics and Thresholds

    37. By “hard down” outage events, we refer to outages that result in loss of service, as opposed to performance degradations discussed below. In determining the appropriate metrics and thresholds for our broadband outage reporting proposals, we initially sought comment on the method for calculating the “user minutes” potentially affected by a broadband outage. In the 2011 Part 4 Notice, we proposed using potentially-affected IP addresses as a proxy for the number of potentially affected users. At least one commenter claimed using IP addresses would tend to overstate the impact of an outage, and advocated using subscriber counts instead. More recently, in response to our proposal for major transport facility outage reporting, Comcast recommended using a “bandwidth-based standard” as a potential replacement for our user-minute metric used for major transport facility outage reporting. In light of technological advances, we now seek to revisit this issue.

    38. We further propose a throughput-based metric and threshold for “hard down” outage events. We propose to define “throughput” as the amount of information transferred within a system in a given amount of time. In light of significant changes in technology and the characteristics of broadband networks generally, we believe that it is appropriate to tailor our approach with respect to the identification of a threshold event for hard-down outages. Since part 4 was first enacted, the communications network architecture and elements, and the services carried over those networks, have grown more diverse and require increased throughput. The Commission currently uses DS3 as the unit of throughput with which to calibrate our reporting threshold for major transport facility outages. The companion document, Report and Order, adopts an updated metric, changing the standard from DS3 to OC3. Given the accumulating amount of throughput required to deliver today's broadband services, we believe that 1 Gbps would function as a modern-day equivalent of the DS3 (45 Mbps) unit originally adopted in 2004, we now calculate that a gigabit can support nearly 24DS3s or 16,000 DS0s (64 Kbps voice or data circuits). This can be seen in the increased deployments of residential communications services offering up to 1 Gbps in download speeds. As such, we tentatively conclude that the threshold reporting criterion for outages should be based on the number of Gbps minutes affected by the outage because Gb is a common denominator used throughout the communications industry as a measure of throughput for high bandwidth services. We further propose to introduce a broadband metric calibrated with the current 900,000 user minute threshold. In today's broadband environment, a typical user requesting “`advanced telecommunications capability' requires access to actual download speeds of at least 25 Mbps.” Accordingly, we calculate that if a facility with throughput totaling 1 Gbps providing individual users 25 Mbps of broadband capacity each, experienced a disruption to communications resulting in a complete outage, 40 individual users would be impacted. We calculate that 1Gbps in throughput total, which is converted to 1,000 Mbps, is divided by 25 Mbps as the download speed for each user, would result in a total of 40 individual users impacted by an outage event. In establishing a gigabit per second user minute threshold, we calculate that 900,000 user minutes divided by the 40 individual users impacted by the outage, results in 22,500 Gbps user minutes. The 22,750 Gbps user minute figure was derived from the current threshold-reporting criterion of “900,000 user minutes.” Assuming a 25 Mbps broadband user connection, as stated in the 2015 Broadband Progress America report, being delivered over a 1 Gbps facility, we compute: 1 Gbps divided by 25 Mbps equals 40 broadband user connections. Then, 900,000 user minutes divided by the number of impacted broadband user connections, 40, equals 22,750 Gbps user minutes. This means that an outage event would become reportable when it resulted in 1 Gbps of throughput affected in which the event exceeds 22,500 Gbps user minutes. To determine whether an outage event is reportable using this threshold, we multiply the size of the facility measured in Gbps, by the duration of the event measured in minutes, and this total generates a Gbps user minute number. If this user minute number exceeds 22,500, then the outage event is reportable to the Commission. So for example, if a 1 Tbps (terabits per second) facility experienced a disruption for 45 minutes, we would multiply 1000 by 45 minutes to get 45,000 Gbps user minutes, and since this figure exceeds 22,500 Gbps user minutes, the outage event would be reportable. We seek comment on the analysis presented, which would establish a reporting threshold of an outage of 1 Gbps (gigabit per second) lasting for 30 minutes or more.

    39. We seek comment on a throughput-based metric and its advantages or disadvantages over a user-based metric, for example, a 900,000 user-minute metric that treats broadband users for measurement purposes as those broadband end users that have no service. We also seek comment on whether a throughput-based metric would be more appropriate for some networks rather others. For instance, would our proposed 1 Gbps throughput threshold be appropriate for both BIAS and dedicated services? If not, why not? Should we consider a throughput-based metric for BIAS networks set at a lower threshold, such as 25 megabits per second (Mbps)? Would this result in an unacceptably small number of outages reports? How well would a threshold of 1 Gbps or greater lasting for 30 minutes or more reflect the geographic scope and impact of an outage and the number of subscribers impacted by an outage? Would a user-minute based threshold better capture the geographic scope and impact of an outage and the number of subscribers impacted? Does using a throughput metric in lieu of potentially-affected IP addresses, or that of subscriber count, as described below, provide better information to the Commission? Would a throughput metric be less or more burdensome for providers than a user-based one? If so, why? How might the increasing availability of Gbps services affect the usefulness of throughput as an outage indicator? Is there a better throughput threshold than 1 Gbps or greater lasting for 30 minutes or more? If so, what would it be?

    40. In addition, we revisit the 2011 proposal to use potentially-affected IP addresses as a proxy for the number of potentially affected users. If we were to adopt the 2011 proposal, would the metric overstate the impact of an outage? If so, by how much would the outage impact be overstated? How well could a potentially-affected IP addresses threshold effectively communicate the geographic scope and impact of an outage and the numbers of subscribers impacted? Would the increasing deployment of IPv6 addresses affect the utility or accuracy of this proposed metric, and if so, how? Would using subscriber counts as a proxy for number of users be a more accurate metric to determine the impact of an outage? In what ways do providers measure the number of subscribers now? Do providers measure broadband subscribers apart from other types of subscribers? If so, why? Which new subscribers would be counted under the proposed rules that were not previously counted? Should we consider unique subscriber-based metrics for BIAS and dedicated services provider? In instances of outage events lasting less than 30 minutes, should we consider whether subscriber-based metrics should be more indicative of a network outage impacting a large metropolitan area or geographic region? What benefit would this add to our proposed broadband outage reporting rules? Do current provider subscriber counts measure the total number of subscribers served at any given time? Are provider subscriber counts verified at the occurrence of an outage or disruption? What difficulties, if any, would covered broadband providers experience in applying a subscriber-based metric?

    b. Performance Degradation Outage Events Metrics and Thresholds

    41. The following section addresses requirements to report outage events in cases of significant degradation of communication. We tentatively conclude that outage events are reportable when there is a loss of “general useful availability and connectivity,” even if not a total loss of connectivity. We propose a series of metrics and thresholds that we believe could identify outage events that significantly degrade communications: (1) A combination of packet loss and latency metrics and thresholds, and (2) a throughput-based metric and threshold. Finally, we seek comment on the appropriate locations for significant degradation of communication measurements.

    (i) “Generally Useful Availability and Connectivity”

    42. Consistent with the part 4 definition of an “outage,” in 47 CFR 4.5(a) (defining an “outage” as “a significant degradation in the ability of an end user to establish and maintain a channel of communications as a result of failure or degradation in the performance of a communications provider's network), we again seek comment on whether covered broadband providers should be required to report disruptions that significantly degrade communications, including losses of “generally useful availability and connectivity” as measured by specific metrics. We propose to define “generally useful availability and connectivity” to include the availability of functions that are part of the service provided (i.e., “service functionality”). We tentatively conclude that outage events experiencing significantly degraded communications include those events with a loss of generally useful availability and connectivity, and seek comment on this tentative conclusion.

    43. In 2011, ATIS stated that losses of “generally useful availability and connectivity” not resulting in a complete loss of service should not be reportable under the part 4 rules, arguing that such events are “more akin to static/noise on legacy communications systems or error rates in DS3 lines . . .” However, the loss of “generally useful availability and connectivity” in the broadband context would appear to be more akin to a legacy voice call during which the users cannot hear or make themselves understood, tantamount to a complete loss of service. This threshold may be even more recognizable in a digital context where effective bandwidth minimums are well understood. Accordingly, we reintroduce the Commission's 2011 proposal to require covered broadband providers to report on losses of `generally-useful availability and connectivity' to capture analogous incidents where customers are effectively unable to use their broadband service. We seek comment on this proposal.

    44. We also seek comment on possible alternatives or additional metrics of generally-useful availability and connectivity. For instance, should the Commission create a reporting metric based on loss of network capacity? If so, how should the Commission quantify a loss of a network capacity for reporting purposes, and what would be an appropriate reporting threshold? Should we consider a metric measuring the average relative bandwidth, where providers would compare the active bandwidth against the provider's bandwidth advertised or offered? Could such a metric be quantified for reporting purposes? If so, what would be an appropriate reporting threshold? What other metrics should the Commission consider?

    (ii) Metrics for Performance Degradation

    45. In addition to the metrics for generally-useful availability and connectivity, we seek comment on potential broadband outage reporting metrics to measure significant performance degradation in communications. In this regard, we propose two sets of proposals. We propose a throughput metric and seek comment on the appropriate thresholds; or, propose an alternative metric based in a combination of three core metrics, throughput, packet loss, and latency, and seek comment on the appropriate thresholds. Moreover, we seek comment on the extent potential metrics for generally-useful availability and connectivity may overlap with the proposed metrics for significant performance degradation in communications.

    46. First, given that throughput is widely recognized as a key metric for measuring network performance, we propose using a throughput metric threshold at 1 Gbps for a network outage or service disruption event lasting 30 minutes or more. In addition to the use of a throughput metric for hard down outages described above, a throughput metric can also determine when a significant degradation occurs in a network, as transmission rates decline as network congestion increases. In addition to throughput, we seek comment on the utility of two other metrics to indicate broadband network performance degradation: Packet loss and latency. Can a proposed 1 Gbps event lasting for 30 minutes threshold capture instances in which the network suffers an outage or experience degradation in network performance? Would it be more appropriate to maintain the 900,000 user-minute threshold for throughput? If so, why? How would it be determined and calculated to be equivalent to a throughput-based metric of 1 Gbps threshold? How would maintaining the 900,000 user-minute threshold capture and account for the complexities found in broadband networks and the outages occurring on those networks? We also seek comment on whether a throughput threshold for performance degradation should require a carrier's average throughput to drop a nominal percentage, say 25 percent, below normal levels. How would such a threshold be measured and reported should this threshold be reached? Would this effectively capture the impact to network subscribers and facilities? Is a nominal drop of 25 percent in average throughput thresholds indicative of noticeable network performance degradation? We seek comment on this approach.

    47. We seek comment on a second proposal looking at these proposed core metrics—packet loss, latency, and throughput. To what extent do covered broadband providers already collect information on packet loss, latency, and throughput? Are any of the metrics better suited than others at measuring loss of generally-useful availability and connectivity of broadband service? Are there any alternate performance metrics that would more effectively capture network outages or performance degradation? If so, what are they and do these providers already capture these metrics? Are any of the metrics more cost-effective to monitor than others, and if so, which are they and why?

    48. We further propose to limit the scope of outage filings to those events that affect customer communications. We seek comment on this approach. In addition to packet loss, latency, and throughput, we seek comment on whether there are other metrics and thresholds that would be indicative of events impacting customer communications, and comment about other appropriate indicators that might better reflect when these communication services are disrupted. Are there existing measurement efforts regarding network performance and assurance conducted by the Commission that would provide better guidance in determining reporting thresholds for broadband network outage reporting? How are these other performance and assurance measurements aligned with our proven public safety and reliability efforts in our current part 4 outage reporting efforts? How does the use of these network performance metrics complement or conflict with other efforts at the Commission? The Commission is providing guidance across a number of areas regarding network performance metrics and measurements ensuring users receive adequate and expected network performance from their service subscriptions.

    49. Alternatively, should we consider adopting more specific, absolute thresholds for packet loss, latency, and throughput to measure significant performance degradation of communications? In 2011, the Commission proposed that service degradation occurs whenever there is a noticeable decline in a network's average packet loss; or average round-trip latency; or average throughput of 1 Gbps, with all packet loss and latency measurements taken in each of at least six consecutive five-minute intervals from source to destination host. If absolute thresholds are preferable, how would these particular thresholds be calculated and determined? Would an absolute threshold still be appropriate with current broadband systems? How could the reporting thresholds for packet loss, latency, and throughput be set at appropriate levels? If any of these thresholds should be adjusted, what is an appropriate threshold? Should the requirement to take performance measurements in six consecutive five-minute intervals be modified? If so, how?

    50. We also seek comment on whether these metrics support a consistent reporting standard across all broadband provider groups. The Commission recognizes that there may be different metrics for performance degradation for different services and that a “one size fits all” approach to determining appropriate metrics and thresholds indicating the health and performance of broadband networks and services may not be appropriate depending on underlying quality of service and network performance requirements. Are these metrics (packet loss, latency, and throughput) appropriate to evaluate performance for both BIAS and dedicated services? Alternatively, are these metrics unique to either BIAS or dedicated services, but not appropriate for both? We also seek comment on whether and how the proposed metrics should differentiate mobile broadband from fixed broadband. Are there unique attributes of mobile broadband that we should consider for our outage reporting purposes? For example, will application of these metrics to mobile broadband result in too many instances where, although a threshold is passed, there is no major problem with the network? Why or why not? Are other network performance metrics more suitable for mobile broadband than fixed broadband, and if so, what are they?

    (iii) Measurement of Performance Degradation

    51. We also seek comment on the end points from which covered broadband providers would measure whether there is performance degradation. In the case of BIAS providers, we believe that these metrics should be measured from customer premises equipment to the destination host. For dedicated services providers, we believe that the metrics should be measured from the closest network aggregation point in the access network (e.g., DSLAM serving DSL subscribers) to the closest network facility routing communications traffic or exchanging traffic with other networks (e.g., PoP, gateway).

    52. We seek comment on these tentative conclusions, and on whether these end-points for measurement are appropriate for their corresponding services, as well as the use of the term “destination host” for all providers. Does “destination host” appropriately cover the various types of network facilities used by covered broadband providers to connect to their customers and/or exchange traffic with other networks? Where in a BIAS network should the measurements take place to record the measurements most accurately? In a dedicated services network? At what level of aggregation should the measurements be taken in the BIAS and dedicated services networks? What is the best way to determine the measurement clients and servers are correctly chosen to accurately measure the proposed metrics? Are there other terms that would better describe the point where network traffic is routed and aggregated from several endpoints (e.g., network aggregation point) for either type of service? For example, should we follow the performance metrics established under the Measuring Broadband America program or other broadband measurement metrics developed by the Commission? We also seek comment on a scenario in which the “destination host” is on another BIAS provider's network. In that case, how would the original BIAS provider detect an outage on its network path? We seek comment on this scenario and anything else the Commission should consider with respect to network end-points.

    5. Broadband Reporting Confidentiality and Part 4 Information Sharing

    53. Currently, outage reports filed in NORS are withheld from routine public inspection and treated with a presumption of confidentiality. We propose to extend this same presumptive confidential treatment to any reports filed under rules adopted pursuant to this FNPRM, including broadband outage reporting filings. We recognize, however, that this approach of presumed confidentiality may need to evolve as networks, and consumer expectations about transparency, also evolve. Accordingly, we seek comment on the value and risk of increased transparency with respect to information about, or select elements of NORS reports filed under the current part 4 rules and any additional rules adopted pursuant to this FNPRM.

    54. As noted in the Report and Order companion document, we believe that the proposal of sharing NORS information with state and other federal entities requires further investigation, including where state law would need to be preempted to facilitate information sharing. The Commission currently only shares access to the NORS database with DHS.

    55. To assist the Commission, we direct the Bureau to study these issues, and develop proposals for how information could be shared appropriately with state entities and federal entities other than DHS. Accordingly, we seek comment on the current reporting and information sharing practices of broadband and interconnected VoIP providers with state governments and other federal agencies. To which agencies and States do providers already report? To what extent is reporting mandatory? What information on outages or communications disruptions do providers report to other federal and state government bodies? What triggers the reporting process? What are the strengths and weaknesses of any existing reporting and information sharing processes? Could any such processes provide an avenue for the Commission to acquire data that it would otherwise receive under the proposed rules? If so, how? What else should the Commission consider regarding the current reporting and information sharing practices of broadband or interconnected VoIP providers? Commenters should address the impact of any other information sharing activities on the part 4 mandates proposed herein, and how these requirements might be tailored to ensure compliance without undue imposition on those other information sharing activities.

    56. We seek comment on how the Commission can strike the right balance between facilitating an optimal information sharing environment and protecting proprietary information. Our goal is to foster reciprocal sharing of information on broadband network outages with federal and state partners, while maintaining confidentiality among those partners and of information contained in the outage reports. To ensure that the Commission benefits from information that providers make available to other federal agencies or state governments, should we encourage covered broadband and interconnected VoIP providers to provide the Commission with copies of any outage reporting that they currently provide to states or other federal agencies, to be treated in the same manner (i.e., confidential or non-confidential) as the entity receiving the original report? Are there alternative methods toward sharing this information? Should we ask our federal and state government partners to provide a preferred path toward sharing this information? We recognize that other federal and state agencies may have different requirements for licensees and FCC regulated entities, and we seek comment on the wider regulatory landscape in which broadband providers may or may not already be reporting outages. Are there special considerations required for the new filings or information collected that the Commission has not previously accommodated for part 4 providers? If so, what adjustments to our original information sharing proposals in the Notice should be made for these new NORS filings and information collected?

    6. Cost-Benefit Analysis for Broadband Network Outage Reporting

    57. In the 2012 Part 4 Order, the Commission deferred action on several broadband outage proposals because they were “sharply opposed by industry on several bases, but especially based on the expected costs.” In this FNPRM, we seek to update the record on the costs of implementing broadband outage reporting, and also seek comment on the costs of compliance with any additional reporting requirements considered herein. We also seek comment on the costs associated with any alternative proposals or unintended modifications to proposals set out by commenters. Specifically, we invite comment on the incremental costs of detecting and collecting information on the outage thresholds described above; the costs of filing reports in NORS; and the costs associated with any additional reporting or other requirements the Commission may adopt to promote network reliability and security. Comments in this area should not focus on new equipment but on the cost of modifying existing outage detection systems to detect and notify the Commission on observed outages meeting reporting thresholds proposed in this FNPRM.

    a. Costs of Detecting and Reporting Outages

    58. We first consider the costs associated with detecting and collecting information on reportable outages under the proposed rules. As a general matter, we agree with the 2011 comments of the National Association of State Utility Consumers Advocates (NASUCA) and the New Jersey Division of Rate Counsel, who observe that VoIP and “broadband [providers] should already be collecting outage-related data in the normal course of conducting their businesses and operations.” We believe this to be as true today as it was in 2011 in light of service providers' public assurances of network performance and reliability. If covered broadband providers already collect internal data to support claims of high network reliability through advertising, we anticipate that they would be able to provide the Commission with similar information at minimal incremental cost. For this reason and others discussed below, we do not believe that requiring covered broadband providers to submit outage data would create an unreasonable burden.

    (i) Outages Defined by Threshold Events

    59. To begin, we note that nearly all providers already have mechanisms in place for determining when an outage occurs and when it surpasses a certain threshold, and if a provider does not, in today's wired world it would not impose significant cost to install such a mechanism. In fact, the record reflects that providers routinely monitor the operational status of their network as part of the normal course of business. Verizon, for instance, explained in 2011 that it “has significant visibility into its broadband networks.” We believe that any provider with “significant visibility” into its network already has the ability to detect network failures or degradations that result in a total loss of service for a large number of customers. Commenters appear to concede this view. Both ATIS and AT&T proposed alternative reporting schemes that would require reporting on total losses of broadband service, and AT&T submits that its proposed scheme would be “unambiguous and easy-to-apply.” CenturyLink likewise admits that “reporting by a broadband Internet access service provider where there is a loss of connectivity to the Internet by end-users is reasonable.” Comments like these, along with ubiquitous advertising on network reliability and performance generally, suggest that the regime described above to report total losses of broadband service would not impose significant additional burdens on providers. We seek comment on this discussion.

    (ii) Outages of “Generally Useful and Available Connectivity”

    60. In 2011, industry commenters identified data collection costs as the most significant cost burden of the proposed rules for performance degradation events. However, we note that the proposed reporting based on loss of “generally-useful availability and connectivity” does not concern every degradation in performance an individual user experiences, but is instead designed to capture incidents in which service is effectively unusable for a large number of users or when critical facilities are affected. We seek further comment on the extent to which providers already collect performance degradation data for internal business purposes. In 2011, covered VoIP and broadband providers were already monitoring QoS metrics, like packet loss, latency and jitter, to assess network performance for certain customers. Today, providers collect network performance information as a necessary part of fulfilling their SLA duties for particular customers, and more generally, providers have significant incentives to track these metrics as part of their network, service, and business risk assurance models. In other words, providers' existing approaches for network data collection for premium customers likely already captures losses of “generally-useful availability and connectivity,” and we believe similar techniques could be expanded to monitor network performance on a broader scale. By building on existing provider practices and harnessing technological developments in network monitoring, we believe that the proposals for broadband reporting requirements described herein would not be unduly costly.

    61. Because providers already routinely collect much of this data, we believe that the cost of compliance of additional rules would be only the cost of filing additional reports. We seek comment on this discussion. If providers do not collect this data, is there similar or comparable data that providers already collect, or could collect at minimal expense, that would be as cost-effective as data they would report under the proposals outlined above? If so, what data, and would it provide the Commission with adequate visibility into events that cause a loss of generally-useful availability and connectivity for significant numbers of broadband users? What would the cost be of this comparable data?

    62. We seek comment on whether we should implement a prototype phase of two years whereby providers would be given significant latitude to determine a qualifying threshold for the “generally useful availability and connectivity” standard. While mandatory reporting would remain, the data collected would positively inform standards in this category that would be broadly applicable to the Commission's needs in this area yet closer to what the reporting companies use for their own operations, thereby reducing potential costs for providers. We seek comment on this analysis.

    b. Costs of Filing Outage Reports

    63. While we anticipate that the costs of filing reports under the proposed rules—i.e., of reformatting and uploading information in the NORS database—would not impose an unreasonable burden on covered broadband providers, we seek comment on the specific costs. Outage reports are currently filed in the Commission's web-based NORS database using simple and straightforward “fill-in-the-blank” templates. NORS currently accepts reports for legacy service outages (wireline, wireless, etc.), as well as interconnected VoIP “hard down” outages. We expect that any reports from covered broadband providers pursuant to rules ultimately adopted in this proceeding would adhere to the same efficient and streamlined process.

    64. In light of growing overlap in corporate ownership of telecommunications network and service offerings, we expect that the inclusion of broadband service under part 4 would largely extend reporting obligations to providers already familiar with reporting via NORS and with internal processes in place for filing reports. We recognize that entities without prior experience reporting in NORS, either themselves or through affiliates, may incur some startup costs, i.e., of establishing a NORS account and training personnel in the use of NORS. We seek comment on this analysis and what specific startup costs would be.

    65. Furthermore, we believe the overall cost to providers of filing disruption reports is a function of the number of reports that are filed and the costs of filing each report. Previously, the Commission has estimated that the filing of each three-stage outage report (i.e., notification, initial report, and final report) requires two hours of staff time, compensated at $80 per hour, amounting to a $160 total cost for the provider. We believe that this estimate remains valid. Moreover, we estimate that adoption of the proposed rules for covered broadband providers would result in the filing of 1,083 reports per year, based on the likely correlation of broadband Internet access service outages with interconnected VoIP outages, in which there were 750 reports in 2015, and of broadband backbone outages with interoffice blocking outages, in which there were 330 reports in 2015. In other words, based on 2015 figures, we estimate that there would be approximately 750 reportable VoIP outages, added to the 330 reportable broadband outages independent of VoIP, results in 1,083 total reports. Accordingly, we estimate that adoption of the rules proposed in this FNPRM would create $173,280 in reporting costs; calculated by adding the number of VoIP and broadband outages in 2015, and multiplying by the expected cost of $160. We seek comment on this cost estimate.

    c. Benefits of Proposed Network Outage Reporting

    66. On balance, we believe that the proposals of this FNPRM would ultimately produce substantial benefits for the public. As noted above, the nation is increasingly reliant on broadband communications, and disasters, pandemics, and cyber attacks can lead to sudden disruptions of normal broadband traffic flows. Adopted prior to widespread adoption of broadband, the current part 4 outage reporting rules have played a significant role in the Commission's successful efforts to promote reliable and resilient communications networks. The Commission's receipt of data on broadband service (and expanded interconnected VoIP service) disruptions would enable it to adapt this established practice to a world in which IP-based networks are increasingly relied on for critical communications—including 911 service—as well as for financial transactions, health care delivery and management, and the operation of our nation's critical infrastructure.

    67. Given the large and rising volume of communications that occur over broadband networks—and the overall economic value these communications represent—even minor increases in network reliability that result from outage reporting could have a significant public benefit. We believe that the benefits of the proposed reporting requirements will be substantial, as increases in network reliability can improve not only business continuity, but also the availability of emergency response, thereby saving many lives. We therefore expect that, even if only a few lives are saved each year, the annual benefit from these proposed changes will far exceed the costs they impose on affected parties. We have noted throughout this FNPRM that the harm from not requiring broadband outage reporting could be substantial, and we believe that the benefits of the proposals would far exceed the costs. We seek comment on other harms that consumers or providers face currently or may face in the future as a result of loss of connectivity that could have been avoided if industry outage trends had been spotted earlier and addressed more constructively through NORS reporting. We seek comment on the total expected benefit of the proposed reporting requirements for broadband providers.

    B. Interconnected VoIP Outage Reporting

    68. In 2012, the Commission adopted limited outage reporting requirements for interconnected VoIP providers. The rules apply to both facilities-based and non-facilities-based interconnected VoIP services. Since extending outage reporting to interconnected VoIP, however, the Commission has not received consistent, timely, or sufficiently detailed reporting needed to promote greater interconnected VoIP service. This causes us now to raise questions about how to stimulate granular and consistent reporting for interconnected VoIP providers that aids the Commission in its efforts to ensure reliable, resilient, and secure interconnected VoIP service for America's consumers and businesses. Accordingly, we propose to modify the existing reporting process for interconnected VoIP to hew closer to the process for other providers. Lastly, we seek comment on whether there are any differences between interconnected VoIP services and other foregoing broadband services that weigh in favor of establishing different outage reporting rules for the two kinds of service providers.

    1. Interconnected VoIP Outage Reporting Process

    69. We propose to amend the reporting process for outages involving interconnected VoIP service to harmonize it with the “legacy” services and the proposed reporting process for broadband outages. However, because the current outage reporting rules for interconnected VoIP allow a 24-hour notification period and do not require interim reports, the Commission rarely learns of interconnected VoIP network outages in near real time, and often has to wait almost a month until the final report is submitted to get outage event root causes or other useful information.

    70. Under the part 4 rules for legacy services, specifically 47 CFR 4.11, initial reports provide the Commission with timely access to more detailed information about an outage than was available to the provider at the time of the notification, in many cases confirming the existence of an outage that was only tentatively reported at the notification stage. However, such initial reports are not required of interconnected VoIP providers, and what's more, the 24-hour notification period has resulted in notifications being filed well after an outage has commenced, in some cases after the outage has concluded. In one recent instance, an interconnected VoIP outage that affected close to 1 million users across nearly a dozen states was first reported to the Commission twenty-three hours after its discovery. Consequently, for certain interconnected VoIP outages, the Commission must wait until a final report is filed—up to thirty days after the notification is filed—to receive any information about the underlying cause of an interconnected VoIP outage, or even to verify that a reportable outage in fact occurred. Providers also do not report information on the duration of the outage in the notification, and are currently only required to give this information 30 days later in the final report. Thus, we believe that the abridged reporting adopted for interconnected VoIP “hard down” outages creates significant gaps in the Commission's visibility into such outages and hinders its ability to take appropriate remedial actions.

    71. We recognize that a lack of visibility into underlying broadband networks may pose challenges to interconnected VoIP providers, in providing information as the cause of the outage. As with BIAS and dedicated services providers, we seek comment on whether interconnected VoIP providers can, do, or should take steps contractually or otherwise to address these problems. At a minimum, we believe that providers should make reasonable efforts to learn about the causes of any reportable outages and thus to be in a position to include such information in their reports, irrespective of whether the affected facility is within their control. Moreover, because interconnected VoIP services often rely on networks that provide BIAS services, we believe that the proposed rules for broadband outage reporting discussed supra largely eliminate this concern and essentially place interconnected VoIP providers on the equal footing with other part 4 entities. Accordingly, we propose to replace the existing reporting structure for interconnected VoIP with the three-report structure used by all other reporting entities, as originally proposed in the 2011 Part 4 Notice. Specifically, we propose to tighten the timeframe for interconnected VoIP providers to notify the Commission of an outage from 24 hours to 120 minutes; to require providers to file an initial report with additional information within 72 hours; and to file a final report within 30 days of the outage that includes all pertinent information about the outage, including any information available that was not contained in or changed from the initial report. All reports would be filed electronically with the Commission.

    72. Furthermore, although not independent triggers for part 4 reporting, we expect providers to include information in their reports concerning (1) the failure of facilities that might be considered critical network elements (we consider a network element “critical” if the failure of that network element would result in the loss of any user functionality that an interconnected VoIP provider provides to its consumers, for example, Call Agents, Session Border Controllers, Signaling Gateways, Call Session Control Functions (CSCF), and Home Subscriber Server (HSS)), and (2) unintended changes to software or firmware or unintended modifications to a database to the extent relevant to a given outage or service disruption that is otherwise reportable. As described fully in the broadband reporting process above, reports should include specific details.

    73. At this time we believe adopting a three-part reporting structure for interconnected VoIP outages is appropriate, however, as raised for broadband outage reporting above, we seek comment on other steps the Commission can take to make providers' reporting obligations consistent across services or otherwise streamline the process. We seek comment on whether there are ways of automating the outage reporting process for interconnected VoIP service providers beyond what has been possible or has been attempted in the context of legacy communications services. How could such automated reporting be accomplished? What are the advantages of such a reporting mechanism? What are the disadvantages? What cost savings would result from any such automation? Alternatively, we seek comment on maintaining the two-step process for interconnected VoIP outages.

    2. Proposed Interconnected VoIP Outage Metrics a. Outages Defined by Performance Degradation (i) Metrics for Performance Degradation

    74. We also propose to require interconnected VoIP providers to report outages, per 47 CFR 4.5(a), that reflect losses of “generally useful availability and connectivity” as defined by specific metrics. Similar to our proposal for covered broadband providers, we propose to base performance degradation on packet loss and latency for any network facility used to provide interconnected VoIP service. We also seek comment on whether it would be appropriate to adopt a throughput-based outage metric for interconnected VoIP outage reporting in addition to the throughput metric discussed above with respect to broadband providers, i.e., providers would be required to report an outage of 1Gbps or more of interconnected VoIP service for 30 minutes or more. Are the proposed metrics—relating to packet loss, latency and throughput—well-suited for interconnected VoIP? Would this approach provide better methods for detecting and reporting outages on interconnected VoIP networks?

    75. We recognize that adopting performance degradation metrics may result in an increased burden on VoIP providers than their legacy voice counterparts. We ask whether interconnected VoIP's unique technology justifies a departure from a pure “hard down” reporting metric currently required for interconnected VoIP providers and that of legacy counterparts, to the adoption of significant performance degradation reporting metrics? Are there throughput-related issues associated with interconnected VoIP calling? For example, where the service might be up and running, yet be degraded to a point that emergency call information exchange is negatively impacted? Or, given interconnected VoIP's dependence on broadband connectivity, are there vulnerabilities associated with that technology that introduce threat scenarios (i.e., attack vectors) that justify the added reporting burden? Are there other considerations we should take into account on the question of adding a performance degradation element to interconnected VoIP providers' obligations under part 4?

    76. As with our current “hard down” outage reporting for interconnected VoIP, we propose to apply any new rules to both facilities-based and non-facilities-based interconnected VoIP. Do interconnected VoIP providers have differing standards for network performance? Are non-facilities-based interconnected VoIP providers able to measure and/or access packet loss, latency, and/or throughput measurements? If not, why? How are non-facilities-based interconnected VoIP providers able to determine the network performance requirements for their service? Should the Commission instead adopt a single metric beyond which voice service is so degraded that it is no longer functional? If so, what is that metric and how and where is it measured? Would multiple metrics be required? If so, what would those metrics and how and where would they be measured? We seek comment on these proposals. We also seek comment on how the proposed metrics apply to mobile VoIP. Will application of these metrics to mobile VoIP result in too many instances where, although the threshold is passed, there is no major problem with the network? Are there other metrics that are better suited for mobile VoIP service? If so, why? Should the monitoring period and metrics adopted for interconnected VoIP outage reporting be consistent with the monitoring period and metrics adopted for broadband outage reporting, or are there differences between the two types of services that warrant different monitoring period and metrics?

    77. Alternatively, as with our proposed broadband outage reporting, we could adopt more specific, absolute thresholds for performance degradation, like those proposed in the 2011 Part 4 Notice for broadband providers, e.g., service degradation occurs whenever there is: (i) An average packet loss of 0.5 percent or greater; or (ii) average round-trip latency of 100 ms or greater, with all measurements taken in each of at least six consecutive five-minute intervals from source to destination host. If absolute thresholds are preferable, are these reporting thresholds for packet loss and latency set at appropriate levels for interconnected VoIP service? Should the Commission adjust any of these thresholds and, if so, what is an appropriate threshold? Should the Commission modify the requirement to take performance measurements in six consecutive five-minute intervals? If so, how?

    (ii) Measurement of Performance Degradation

    78. Moreover, we seek comment on the end-points from which interconnected VoIP providers will need to measure these metrics. We recognize that it is important to consider the methods used to measure the proposed metrics and account for the location of the network elements within the interconnected VoIP networks. This will help to ensure accurate and reliable measurements of the proposed metrics to indicate network performance. We propose that these metrics be measured from “source to the destination host.” The term “source” would refer to the network elements responsible for the setting up the VoIP call (e.g., call manager, user agent, client) while the term “destination” would refer to the endpoints routing and executing the call (e.g., VoIP router, softphone). We seek comment on the use of the terms “source” and “destination host” and ask if these terms appropriately cover the various types of network facilities (e.g., CSCF, HSS, AAA servers, SIP servers, Session Border Controllers, Media Gateway Controllers) used by interconnected VoIP providers to connect to their customers and/or exchange network traffic with other interconnected VoIP networks? Are there other terms that would better convey the network elements from which interconnected VoIP providers will need to measure the proposed reporting metrics?

    b. Benefits and Costs of Proposed Reporting

    79. We seek comment on whether the benefits of this additional reporting would outweigh the incremental burden on providers. We estimate that the three-part reporting of an outage—including the filing of a notification, initial report, and final report—imposes only a $300 cost burden on the provider. In 2015, the Commission reviewed 750 interconnected VoIP outages. We expect to review an additional 750 filings for the same number of outages received in 2015, and an additional 75 filings as a result of our performance degradation proposal discussed above. Therefore, 750 plus 75 initial reports multiplied by 0.75 hours it takes to complete an initial report, multiplied by the cost of $80 employee hourly rate, results in $49,500 added cost. We therefore do not believe that expanding the reporting process from two reporting stages to three would significantly increase burdens for providers. We seek comment on this tentative conclusion. To the extent that commenters disagree, we seek comment on alternative, least costly methods. Is there similar or comparable data that providers already collect, or could collect at minimal expense given current data collection practices, that would be more cost-effective to report than the data they would report under the proposed rules? If so, what data, and would it provide the Commission with adequate visibility into events that cause a loss of generally-useful availability and connectivity for significant numbers of interconnected VoIP users? What would the cost be of this comparable data?

    80. We believe that the benefits of the proposed rules would exceed the costs. Absent the rules proposed in this FNPRM, the Commission lacks sufficient visibility into the reliability and security of interconnected VoIP networks. We believe that relevant data is already routinely collected by interconnected VoIP providers (in real time), so the cost of compliance would be only the cost of filing additional reports where necessary. Moreover, we believe that many of the proposed outage reporting triggers for interconnected VoIP, including those based on performance degradation, are likely to be covered by outages to the underlying broadband networks. Therefore, we do not believe the number of additional reports filed annually pursuant to the proposed rules for interconnected VoIP to be significant. We seek comment on this discussion.

    C. Call Failures in Radio Access Networks

    81. In the 2015 Part 4 Notice, we sought comment on the reporting of call failures that result from congestion in wireless radio access networks (RAN), and in non-wireless (i.e., wireline and VoIP) local access networks. We noted that the inability of the access network to support excess demand may not be considered reportable as a “failure or degradation” under our current rules, but the inability of consumers to make calls still undermines the reliability of networks. Nevertheless, we are concerned about the impact of such events on the reliability of 911 service. Because this appears to be predominantly an issue with wireless networks, we proposed to amend our part 4 rules to require reporting of systemic wireless call failures that results from overloading in the RAN.

    82. Requiring reporting of overloading in the access network (wireless radio or non-wireless local access) should not be interpreted to mean that providers must engineer their networks to account for sporadic spikes in calls. Instead, the reports would provide the Commission with data to identify any trends in network overloading. This could include identifying, for example, a particular network equipment that may be more susceptible to failure in mass calling events. Moreover, analysis of this data allows the Commission to work with industry to address situations where the network consistently fails to address “bursty” call patterns similar to those generated after disaster and wide-scale emergencies. While we recognize the point made by several commenters that networks should not be engineered to be able to transmit every single call if everyone in an area attempted to use the network at once, we believe that it would be in the interest of the public for the Commission to receive information on those situations, so that we can determine if, when, and where, blocking is consistently happening.

    83. Verizon argues that such reporting that would be collecting information “for the sake of it,” but that point ignores the premise behind our outage reporting rules. Although situational awareness is one goal of outage reporting, another key objective is to provide data to the Commission so that it can detect adverse outage trends and facilitate industry-wide network improvements. Moreover, even though we continue to believe that outage reporting encourages providers to fix problems in their networks, we note that many outage reports do not always result in permanent fixes to the network, as the outage may be a “one-off” event. However, as Public Knowledge observes, we will not know that such events are indeed “one-off,” if the Commission is not aware of them in the first place.

    84. Commenters also note that mass calling events are often unpredictable and typically short-lived, so they question the value of reporting on such events. However, because a mass calling event can be the consequence of a widespread disaster, we see significant value in collecting information on such events, as these are the incidents where reliable, resilient communications are most needed. Indeed, understanding failure patterns in moments of network saturation can help identify best practices for network management, as well as help certain communities realize a need for greater detail in emergency management plans. We recognize that reporting on mass calling events will not prevent them from occurring in the future, but we believe there is substantial value in analyzing such events in hindsight, as individual providers are unlikely to be able to see how such an event fits into broader industry practices and performance levels. With such data, the Commission would be in a better position to work with providers to address industry-wide problems and share industry-wide mitigation solutions.

    85. With respect to wireless RANs, we propose to consider a cell site to be “out” whenever a cell tower operates at full capacity (i.e., is unable to process any additional calls) for 75 percent of the time during a period of at least 30 minutes. If the number of potentially-affected wireless user-minutes exceeds 900,000 for the cell sites considered “out,” the outage would be reportable. Similarly, for non-wireless local access networks, we propose to amend our outage reporting rules to consider a loop carrier system or remote switch to be “out” whenever a remote terminal or the group of channels connecting a remote switch to a host operates at full capacity (i.e., is unable to process any additional calls) for 75 percent of the time during a period of at least 30 minutes. If the number of user-minutes exceeds 900,000 for the loop carrier systems and remote switches that are considered “out,” the outage would be reportable.

    86. We seek comment on these proposals. Is 30 minutes an appropriate time period to measure call blockages? If not 30 minutes, what should be the appropriate interval of measurement for averaging purposes? Is 75 percent of that time at full capacity the right percentage of time? Alternatively, what percentage of calls blocked during that period constitutes congestion of the access network? To the extent that commenters oppose our proposal, we encourage them to propose an alternative, workable metric that addresses our concern. Is there a better way to measure persistent, widespread call failures in the RAN or local access network?

    87. With respect to wireless RANs, we seek comment on how providers currently measure call failures. Would providers know of, and therefore have a way to measure, call attempts when a cell site is fully congested and not accepting call origination information? Also, given that wireless calls are constantly initiated and terminated within any given cell site, could some percentage below full capacity constitute congestive RAN failure for purposes of reporting? For congested cell sites, should the usual methods for calculating the total number of customers affected be used, or should some account be taken of the fact that more than the usual number are trying to use the towers during these periods?

    88. In the Notice, we estimated that under our proposal for reporting of widespread call failures in wireless RANs, providers would need to file approximately 420 reports per year, thus increasing their annual reporting costs by $67,200. We based this estimate on the assumption that wireless networks and interoffice networks are engineered to achieve comparably low rates of call failure and would have a comparable rate of calls blocked.

    89. We seek further comment on the specific costs to implement some type of reporting on call failures in both the RAN and the local access network. With regard to the RAN, CCA disagrees with an assumption in the Notice that providers are already technically capable of tracking call failures at each cell site, asserting that some of its members “do not currently collect and preserve this information in an ongoing manner.” We seek more specific information about the data that providers already have about call failures and the costs of adding equipment to track call failures at cell sites. To what extent do providers already track call failures in the RAN and the local access network? What other parameters do operators use to determine when new towers or equipment must be installed to meet increasing demand? Commenters should be specific as to the information that their networks can track. Commenters should be specific and realistic in their costs estimates as well.

    90. Moreover, we ask if some type of delayed implementation or exemption for smaller and/or rural providers would be helpful, particularly given that we expect network overloading is less likely to be an issue in rural areas. If we were to delay implementation of this type of reporting for a certain subset of providers, what would be a reasonable amount of time? What definition of smaller and/or rural carrier would be most appropriate?

    D. Geography-Based Wireless Outage Reporting

    91. In the 2015 Part 4 Notice, we sought comment on a separate and additional wireless outage reporting requirement based on the geographical scope of an outage, irrespective of the number of users potentially affected. Wireless outages that may not meet our 900,000 user-minute threshold but cover large geographic areas may be important because wireless service may be the only option in many areas, particularly as the percentage of calls to 911 from wireless devices continues to increase. It may be possible that large geographic areas are regularly losing service, but we are not aware of them (other than by press reports) because they do not meet the 900,000 user-minute threshold. Nonetheless, these outages are especially important to areas where service (wireless or otherwise) is minimal, and when an outage occurs, those in an emergency would have to travel far to make a 911 call.

    93. We propose to amend the part 4 reporting requirements to include wireless outages significantly affecting rural areas. We seek comment on this proposal. Specifically, we propose to require a wireless provider serving a rural area to file outage reports whenever one-third or more of its macro cell sites serving that area are disabled such that communications services cannot be handled through those sites, or are substantially impaired due to the outage(s) or other disruptions affecting those sites. We seek comment on, alternatively, requiring such reporting upon the disabling of one-half of the macro cell sites in the rural area. In regard to the definition of “rural area,” while the Communications Act does not include a statutory definition of what constitutes a rural area, the Commission has used a “baseline” definition of rural as a county with a population density of 100 persons or fewer per square mile. We propose to use this same definition for purposes of determining wireless outages affecting predominantly rural areas. We ask, however, whether other alternative definitions might be of better use in aiding our visibility into rural-specific outages. For example, should we focus on areas designated for the Universal Service Mobility Fund support? Are there other rural area designation tools or proxies that should be considered (e.g., defining areas by rural exchange operating carrier designations—OCNs)? We seek comment on these questions and proposals.

    94. Is there a geographic area designation other than “rural area,” as defined above, that aligns better with the way wireless providers measure their own service? For example, is there a subset of any licensed service area (e.g., Cellular Market Area) that wireless carriers could more easily use to identify outages in predominantly rural areas? Or, would the use of zip codes, such as when one hundred percent of a zip code is impacted be an appropriate measurement? Also, we seek comment on whether an outage of at least one-third, or one-half, of cell sites within the rural area would indicate an outage that would be of a nature that it substantially affects wireless coverage for a large geographic area.

    95. We recognize that this issue may become less critical as wireless providers begin to comply with the new standardized method, adopted in the above Report and Order, for calculating the number of potentially affected users during a wireless outage. By using a national average to determine the potentially affected users per site, will adoption and implementation of this new formula for the number of potentially-affected users increase the reporting of outages in low population areas? We also seek comment on alternative measurements for outages in rural areas. For example, could we adopt a lower user-minute threshold for rural areas to increase the reporting of events affecting rural communities? For example, would a threshold of 300,000 user-minutes in rural areas increase our chances of receiving information on outages that affect rural communities? Conversely, for example, would clear geographic criteria, such as a county-based threshold, for wireless outage reporting simplify the M2M rules for automated outage reporting and eliminate the need for manual interpretations of thresholds?

    96. In the Notice, we estimated that adoption of a geography-based outage reporting requirement would result in the filing of an additional 1,841 reports per year, thereby increasing reporting costs by $294,560 (i.e., 1,841 reports × $160 staff costs per report). To reach this estimate, we subtracted the number of additional outage reports that would be generated by geography-based reporting from the number of reports that would be submitted for outages that meet the current 900,000 user-minute threshold. We estimated that geography-based reporting would generate additional reports in counties where a wireless provider has fifteen or fewer cell sites. The number of counties with fifteen or fewer cell sites represents 2.7 percent of the total number of cell sites nationwide, based on analysis of data collected from companies given to the Commission during activations from the Disaster Information Reporting System (DIRS) in 2012. Using as a guide counties with fifteen or fewer cell sites, we calculated that a disruption to communications would be reportable under a geographic coverage standard if one or two cell sites in the county are down. Based on historical NORS data, we then estimated that each cell site has a 22.6 percent chance of experiencing an outage within a given year, and using CTIA's estimate that 301,779 cell sites were in operation nationwide as of the end of 2012, we tentatively conclude that adoption of a geography-based reporting requirement would likely result in the filing of 1,841 additional reports per year, creating an estimate of $294,560 cost burden.

    97. We seek further comment on the costs of implementing a new geography-based outage reporting requirement for wireless carriers. Sprint and Verizon argue that carriers would need to develop and deploy additional automation tools and monitoring mechanisms. We estimate that, based on our proposal here, our estimate of 1,841 additional reports per year from the Notice will be the same. We seek further comment on a way in which we could capture outages affecting large geographic areas without being overly burdensome for providers. If, for example, we were to adopt an outage reporting requirement when 33 percent of cell sites become disabled within a county, would such a calculation require additional tools or monitoring mechanisms? We assume carriers would already know when (and why) their cell sites become disabled, and would know the number of cell sites per county. Therefore, we believe it would be a relatively easy and inexpensive calculation for providers to determine if a certain threshold of cell sites in a county have become disabled. Is one-third (33 percent) the appropriate threshold?

    98. NTCA comments that the burden would be greater on smaller carriers, where the failure of one tower may trigger a reporting obligation. While we could consider some type of exemption for smaller carriers, we believe smaller and rural carriers cover precisely the areas targeted by this proposal. Therefore, we do not propose to exempt any carriers. We seek comment on this approach.

    E. Refining the Definition of “Critical Communications” at Airports

    99. Commercial aviation increasingly depends on information systems that are not collocated with airport facilities, and that may carry critical information. We seek comment on requiring reporting of outages affecting critical aviation information facilities that are not airport-based, either as a function of their status as TSP Level 3 or 4 facilities (facilities are eligible for TSP Level 3 or 4 prioritization if they (3) support public health, safety, and maintenance of law and order activities or (4) maintains the public welfare and the national economic system), or upon some other basis. In particular, we seek comment on whether it is correct to assume that some information systems critical to safe commercial aviation are not located within an airport's facility. If the assumption is accurate, we invite discussion of the architecture of such external systems, including the safeguards currently established for those systems. Were the Commission to explore outage reporting requirements for these systems and facilities, what reporting criteria should it establish? For outage reporting purposes, should the Commission distinguish between facilities enrolled in the TSP program and those facilities that are not? If so, on what basis should the different treatment be premised? What, if any, additional costs might be associated with expanding the reporting obligation to such facilities, whether or not enrolled in TSP?

    F. Legal Authority 1. 911 and Emergency Communications

    101. Following the evolution in the country's commercial communications networks, the nation's emergency communications systems are in the process of a critical transition from legacy systems using time-division multiplex (TDM)-based technologies to Next Generation 911 (NG911) systems that utilize IP-based technologies.

    102. As a result of this transition, the nation's 911 system will increasingly include the BIAS and dedicated services, which will support a new generation of 911 call services that may be vulnerable to a similarly new generation of disruptions that may not have existed on legacy 911 networks. Indeed, as NG911 services are increasingly provisioned through broadband network elements, disruptions to broadband could impact the provision and reliability of local 911 voice and other shared services essential to emergency response. Accordingly, we believe that monitoring the resiliency of broadband networks supporting that communication is vital to ensure the reliable availability and functionality of 911 services.

    103. Regarding our proposal to update the outage reporting rules for interconnected VoIP service providers, 47 U.S.C. 615a-1 instructs the Commission to “take into account any technical, network security, or information privacy requirements that are specific to IP-enabled voice services” and to update regulations “as necessitated by changes in the market or technology, to ensure the ability of an IP-enabled voice service provider to comply with its obligations.” The proposed reporting process seeks to modernize the outage reporting system in light of technology advances and greater consumer adoption of interconnected VoIP service, considering the potential for degradations of service to impact 911 call completion. We seek comment on how Section 615a-1 provides authority to adopt such proposals with respect to interconnected VoIP.

    104. We also believe that our proposals to extend outage reporting to the classes of broadband providers and services described in this FNPRM are authorized by or reasonably ancillary to our statutorily mandated responsibility under Section 615a-1 to ensure that “IP-enabled voice service provider[