Federal Register Vol. 81, No.163,

Executive Order 12866, Classification

This rule has been determined to be not significant for purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget (OMB).

The civil monetary penalty provision is authorized under section 543(b) of the Housing Act of 1949, as amended (42 U.S.C. 1490s(b)).

This document has been reviewed in accordance with 7 CFR part 1970. RHS has determined that this action does not constitute a major Federal action significantly affecting the quality of the environment. In accordance with the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., an Environmental Impact Statement is not required.

This rule has been reviewed with regard to the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). Under Section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Agency has determined and certified by signature on this document that this rule will not have a significant economic impact on a substantial number of small entities since this rulemaking action does not involve a new or expanded program nor does it require any more action on the part of a small business than required of a large entity.

The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of Government. This rule does not impose substantial direct compliance costs on State and local Governments; therefore, consultation with the States is not required.

This rule has been reviewed under Executive Order 12988. In accordance with this rule: (1) Unless otherwise specifically provided, all State and local laws that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule except as specifically prescribed in the rule; and (3) administrative proceedings of the National Appeals Division of the Department of Agriculture (7 CFR part 11) must be exhausted before bringing suit in court that challenges action taken under this rule.

Title II of the UMRA, Public Law 104-4, establishes requirements for Federal Agencies to assess the effects of their regulatory actions on State, local, and tribal Governments and on the private sector. Under section 202 of the UMRA, Federal Agencies generally must prepare a written statement, including cost-benefit analysis, for proposed and Final Rules with “Federal mandates” that may result in expenditures to State, local, or tribal Governments, in the aggregate, or to the private sector, of $100 million or more in any 1-year. When such a statement is needed for a rule, section 205 of the UMRA generally requires a Federal Agency to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective, or least burdensome alternative that achieves the objectives of the rule. This rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and tribal governments or for the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

The revisions in this rulemaking for 7 CFR part 3560 are subject to the Paperwork Reduction Act package with the assigned OMB control number of 0575-0189. No changes would impact that package.

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

The programs affected by this regulation are listed in the Catalog of Federal Domestic Assistance under Section 514 program and Section 516 program (10.405); Section 515 program (10.415); Section 521 (10.427); and Section 542 (10.448).

This executive order imposes requirements on RHS in the development of regulatory policies that have tribal implications or preempt tribal laws. RHS has determined that the rule does not have a substantial direct effect on one or more Indian tribe(s) or on either the relationship or the distribution of powers and responsibilities between the Federal Government and the Indian tribes. Thus, the rule is not subject to the requirements of Executive Order 13175. If tribal leaders are interested in consulting with RHS on this rule, they are encouraged to contact USDA's Office of Tribal Relations or Rural Development's Native American Coordinator at (720) 544-2911 or [email protected] to request such consultation.

This final rule is subject to the provisions of Executive Order 12372 which require intergovernmental consultation with State and local officials. RHS conducts intergovernmental consultations for each loan and grant in a manner delineated in 7 CFR part 3015 subpart V.

In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identification (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Persons with disabilities who require alternative means of communication for program information (e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English.

To file a discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at http://www.ascr.usda.gov/complaint_filing_cust.html and at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by:

(1) Mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., Washington, DC 20250-9410;

(2) fax: (202) 690-7442; or

(3) email: [email protected].

USDA is an equal opportunity provider, employer, and lender.

Section 543(b) of the Housing Act of 1949 as amended (hereinafter the Act) (42 U.S.C. 1490s(b)) states for 5 different types of violations, “the Secretary may, after notice and opportunity for a hearing, impose a civil monetary penalty (CMP) against any individual or entity, including its owners, officers, directors, general partners, limited partners, or employees, who knowingly and materially violate, or participate in the violation of the Act or its regulations.”

In the proposed rule published in the Federal Register on January 4, 2013 (78 FR 672) RHS proposed to implement two civil monetary penalty provisions. First, RHS proposed to amend its regulations to create a new section for imposing civil monetary penalties under the authority of 42 U.S.C. 1490s (section 543 of the Housing Act of 1949, as amended (Act)) (Housing Act CMP). Second, RHS proposed to adopt the USDA civil monetary penalty provisions for the Program Fraud Civil Remedies Act of 1986 (PFCRA) in a revision to an existing regulation (PFCRA CMP). In the proposed rule, RHS addressed the following issues for CMP:

1. Procedures for the determination of the civil monetary penalties;

2. Procedures for the administrative hearing;

3. Establishing fines; and

4. Procedures for the collection of fines.

In the final rule, Multi-Family Housing (MFH) will set out procedures to use the USDA Administrative Law Judges' office to conduct the hearings for the civil monetary penalty program. The Administrative Laws Judges conduct similar hearings for other USDA agencies. The Administrative Law Judges' regulations allow within its jurisdiction, “other adjudicatory proceedings in which the complaint instituting the proceeding so provides with the concurrence of the Assistant Secretary for Administration.” See 7 CFR 1.131(b)(6) Rural Housing Service (RHS) received concurrence in conducting MFH's civil monetary penalty hearings through the Administrative Law Judges' office.

The Agency expects about 50 CMP cases annually.

On January 4, 2013 (78 FR 672), the Agency published a proposed rule for Civil Monetary Penalties. A thirty-day comment period that ended February 4, 2013, was provided. Fifty-one comments were received from eleven stakeholders, including housing associations, housing advocates, and individuals. RHS is also including five comments relating to civil monetary penalties received from an interim rule titled “Reinvention of the Sections 514, 515, 516 and 521 Multi-Family Housing Programs”, which was published on November 26, 2004 (69 FR 69032-69176). Of the comments received, two comments were deemed not relevant to the rule, as the comments were not related to the CMP proposed rule.

The Agency will adopt the following comments:

Duplication and vagueness of CMP/PFCRA: Twenty-one comments mentioned that the proposed rule was broad and vague. Comments expressed concern about the duplication and overlap of existing rules created by the proposed rule. Several commenters requested that the Agency explain the need for Program Fraud Civil Remedies Act (PFCRA) in the proposed rule. The Agency has reviewed the comments and agrees that the inclusion of PFCRA provisions in the proposed rule created repetition and overlap, so they have been removed. Accordingly, the Agency has determined that 7 CFR part 1, subpart L, Procedures Related to Administrative Hearings Under the Program Fraud Civil Remedies Act of 1986, will be replaced with references to 7 CFR part 1, subpart H—Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes.

The majority of borrowers and management agents within the multifamily portfolio comply with Agency regulations and procedures and will not be affected by this rule. We estimate that less than five percent of the multifamily portfolio will be affected by the CMP rule.

CMP Process: Ten comments expressed concerns about the CMP process. Those concerns included:

• Two comments concerning the timeliness and use of the Attorney General. The concern was that the use of the United States Attorney's office could take years delaying completion of any civil monetary penalty against the individual or entity.

• One commenter raised a concern about the role of the Office of General Counsel (OGC) and its impact on the length of time for completing a CMP case and whether it had adequate staffing to handle such matters.

• One comment requested clearer guidance on the role and process of the Fraud Claims Officer, and the designation of the reviewing official.

• One comment objected to the pre-penalty notices warning that a penalty may be coming if the Agency did not receive adequate performance.

• Five comments were received that raised concerns about the complicated methodology of the process, ambiguous deadlines, and the standards for maintaining a property.

• Another comment suggested that the rule clearly limit which portions of Part 1 apply so, for example, the Agency is clear that it is not seeking to take on the Office of Inspector General (OIG) investigation powers, but is still providing full and adequate discovery and hearing procedures.

• Another commenter suggested an initial process using the State Director or Program Director.

• The Agency considered all of the comments above and changed the rule by enlisting the Office of Administrative Law Judges to administer civil monetary hearings to address the concerns of due process. References to the Fraud Office, of which there is no equivalent in USDA have been removed. No specific pre-penalty notice will be provided. Instead the Agency will use servicing letters in the existing guidance provided in the Serving Handbook. The Administrative Law Judges conduct similar hearings for other U.S. Department of Agriculture agencies. The Administrative Law Judges' regulations allow within its jurisdiction, “other adjudicatory proceedings in which the complaint instituting the proceeding so provides with the concurrence of the Assistant Secretary for Administration.” See 7 CFR 1.131(b)(6). The Agency process will be similar to that used by Investigative and Enforcement Services of the Animal and Plant Health Inspection Service (APHIS). Borrowers will have an opportunity to resolve the findings or deficiencies by working with the State Director and Agency staff prior through its regulatory loan servicing procedures prior to a CMP hearing. As with other loan servicing actions, the Agency will complete its loan servicing pursuant to 7 CFR part 3560 of the Borrower's loan account before pursuing civil monetary penalties. Pursuant to 7 CFR 3560.456(b), the Agency will make a determination on whether to proceed with an acceleration or seek CMPs. The Office of General Counsel will review the cases to ensure legal sufficiency as well as represent the Agency on any cases that they recommend to move forward. Once forwarded, the timing of the process will be incumbent on the caseload of the Office of the Administrative Law Judges.

The Agency will amend § 3560.461(b)(2) adding references to 7 CFR part 1 subpart H-Rules of Practice Governing Formal Adjudicatory Proceedings Instituted by the Secretary Under Various Statutes. In response to comments concerning duplicity, due process and procedural concerns the Agency determined it will use its authority in section 543(b) Housing Act authority and this subpart rather than 7 CFR part 1, subpart L.

CMP Fees: Three commenters expressed concerns about the fee structure and its reasonableness. As described in the proposed rule, the CMP fees will be assessed in accordance with 7 CFR part 3, subpart I. The Administrative Law Judge will use the criteria in the final rule and the requirements in section 3.91(b)(8) to determine the fees. The Agency believes that the fees set in the final rule will be reasonable. With the threshold of the fees independently established in USDA regulation and the assessment of the CMP fees imposed by the Administrative Law Judges, the Agency believes these measures eliminate any potential RHS subjectivity or bias.

• Failure to Disclose: One commenter requested that the Agency add a section to the rule that specifies the failure to disclose proper identity-of-interest information on site managers and contractors as a cause to impose CMP. We agree this should be included and have adopted the comment. This requirement is addressed in § 3560.461(b)(1)(iii) entitled, “Failing to submit information requested by the Agency in a timely manner.”

The Agency will not adopt the following comments:

Non-profits: Six commenters were concerned about the negative impact of the rule on non-profit borrowers. Some requested exempt status or a 24-month grace period for implementation when a non-profit obtains a property through a transfer and assumption.

The Agency does not see a need to adopt the comment because all borrowers, including non-profits, are required to adhere to the requirements of 7 CFR part 3560. In addition, MFH will work with the non-profits to assist them in bringing the properties into compliance with MFH regulations. As a result, MFH does not think it is necessary to implement a 24 month grace period.

Liability Concerns: One commenter expressed concerns about liability in the case of a Limited Liability Corporation (LLC) and whether the tenant could be liable. It is ultimately the borrower's responsibility to remain compliant with the program regulations. False information provided by the tenant resulting in unauthorized benefits may be pursued under 7 CFR part 3560, subpart O—Unauthorized Assistance. The Agency will determine borrower liability on a case-by-case basis and as the regulation and law allows. A Tenant may be liable under the CMP and is subject to the requirements of this rule.

Lack of Resources: One commenter requested that the rule clarify that civil monetary penalties will not be sought or assessed under circumstances where the primary cause of a failure to properly manage or maintain a project results from a lack of available funds where the borrower has requested rental increases or additional loans or grants in order to maintain and repair the project, but such requests have been denied. The Agency understands the commenter's concern. The Agency is choosing not to adopt the comment because the Agency is confident it can work with borrowers on tools that are available, which may include rent increases in accordance with 7 CFR part 3560, subpart E and other servicing options available under subpart J.

For the reasons set forth in the preamble, chapter XXXV, Title 7 of the Code of Federal Regulations is amended as follows:

In FR Doc. 2016-15673, appearing on page 42987 in the Federal Register of Friday, July 1, 2016, DHS makes the following correction:

I. Obtaining Information and Submitting Comments II. Procedural Background III. Background IV. Discussion of Changes V. Voluntary Consensus Standards VI. Agreement State Compatibility VII. Plain Writing VIII. Environmental Assessment and Finding of No Significant Environmental Impact IX. Paperwork Reduction Act Statement X. Regulatory Flexibility Certification XI. Regulatory Analysis XII. Backfitting and Issue Finality XIII. Congressional Review Act XIV. Availability of Documents I. Obtaining Information and Submitting Comments A. Obtaining Information

Please refer to Docket ID NRC-2016-0103 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

• Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2016-0103.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [email protected]. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in the “Availability of Documents” section.

• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

Please include Docket ID NRC-2016-0103 in your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at http://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

This rule is limited to the changes contained in Amendment No. 2 to CoC No. 1032 and does not include other aspects of the Holtec HI-STORM FW MPC Storage System design. The NRC is using the “direct final rule procedure” to issue this amendment because it represents a limited and routine change to an existing CoC that is expected to be noncontroversial. Adequate protection of public health and safety continues to be ensured. The amendment to the rule will become effective on November 7, 2016. However, if the NRC receives significant adverse comments on this direct final rule by September 22, 2016, then the NRC will publish a document that withdraws this action and will subsequently address the comments received in a final rule as a response to the companion proposed rule published in the Proposed Rule section of this issue of the Federal Register. Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action.

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:

(a) The comment causes the NRC staff to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC staff.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC staff to make a change (other than editorial) to the rule, CoC, or Technical Specifications (TSs).

For detailed instructions on filing comments, please see the companion proposed rule published in the Proposed Rule section of this issue of the Federal Register.

Section 218(a) of the Nuclear Waste Policy Act (NWPA) of 1982, as amended, requires that “the Secretary [of the Department of Energy] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the NWPA states, in part, that “[the Commission] shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 219(a) [sic: 218(a)] for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the Commission approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule which added a new subpart K in part 72 of title 10 of the Code of Federal Regulations (10 CFR) entitled, “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new subpart L in 10 CFR part 72 entitled, “Approval of Spent Fuel Storage Casks,” which contains procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule dated March 28, 2011 (76 FR 17019), that approved the Holtec HI-STORM FW MPC Storage System design and added it to the list of NRC-approved cask designs in 10 CFR 72.214, “List of approved spent fuel storage casks,” as CoC No. 1032.

By letter dated March 31, 2015, Holtec submitted a request to the NRC to amend CoC No. 1032 (ADAMS Accession No. ML15092A130). Holtec supplemented its request on the following dates: April 9, 2015 (ADAMS Accession No. ML15114A423), June 19, 2015 (ADAMS Accession No. ML15170A433), and August 14, 2015 (ADAMS Accession No. ML15233A038). Amendment No. 2 includes the following changes:

• Adds new fuel types to the HI-STORM FW MPC Storage System;

• Includes criticality calculations performed in support of the request for Amendment No. 2 to CoC No. 1040 for the HI-STORM Underground Maximum Canister Storage System;

• Updates an existing fuel type description; and

• Includes changes previously incorporated in Amendment No. 0 to CoC No. 1032, Revision 1.

In addition to the changes requested by Holtec, the NRC staff proposed to revise CoC Condition No. 8 to provide additional clarity and guidance. Holtec agreed to this change in correspondence dated February 29, 2016 (ADAMS Accession No. ML16061A410). Therefore, Amendment No. 2 includes the revision to CoC Condition No. 8.

As documented in the Preliminary Safety Evaluation Report (PSER) (ADAMS Accession No. ML16054A624), the NRC staff performed a detailed safety evaluation of the proposed CoC amendment request. There are no significant changes to cask design requirements in the proposed CoC amendment. Considering the specific design requirements for each accident condition, the design of the cask would prevent loss of containment, shielding, and criticality control. If there is no loss of containment, shielding, or criticality control, the environmental impacts would be insignificant. This amendment does not reflect a significant change in design or fabrication of the cask. In addition, any resulting occupational exposure or offsite dose rates from the implementation of Amendment No. 2 would remain well within the applicable limits of 10 CFR part 20, “Standards for Protection Against Radiation.” Therefore, the proposed CoC changes will not result in any radiological or non-radiological environmental impacts that significantly differ from the environmental impacts evaluated in the environmental assessment supporting the March 28, 2011, final rule. There will be no significant change in the types or significant revisions in the amounts of any effluent released, no significant increase in the individual or cumulative radiation exposure, and no significant increase in the potential for or consequences from radiological accidents.

This direct final rule revises the Holtec International HI-STORM FW MPC Storage System listing in 10 CFR 72.214 by adding Amendment No. 2 to CoC No. 1032. The amendment consists of the changes previously described, as set forth in the revised CoC and TSs. The revised TSs are identified in the PSER.

The amended Holtec HI-STORM FW MPC Storage System design, when used under the conditions specified in the CoC, the TSs, and the NRC's regulations, will meet the requirements of 10 CFR part 72; therefore, adequate protection of public health and safety will continue to be ensured. When this direct final rule becomes effective, persons who hold a general license under 10 CFR 72.210, “General license issued,” may load spent nuclear fuel into Holtec HI-STORM FW MPC Storage System casks that meet the criteria of Amendment No. 2 to CoC No. 1032 under 10 CFR 72.212, “Conditions of general license issued under § 72.210.”

The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC will revise the Holtec HI-STORM FW MPC Storage System design listed in 10 CFR 72.214. This action does not constitute the establishment of a standard that contains generally applicable requirements.

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the Federal Register on September 3, 1997 (62 FR 46517), this rule is classified as Compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended, or the provisions of 10 CFR. Although an Agreement State may not adopt program elements reserved to the NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws, but does not confer regulatory authority on the State.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).

The action is to amend 10 CFR 72.214 to revise the Holtec HI-STORM FW MPC Storage System listing within the “List of Approved Spent Fuel Storage Casks” to include Amendment No. 2 to CoC No. 1032. Under the National Environmental Policy Act of 1969, as amended, and the NRC's regulations in subpart A of 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” the NRC has determined that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The NRC has made a finding of no significant impact on the basis of this environmental assessment.

This direct final rule amends the CoC for the Holtec HI-STORM FW MPC Storage System design within the list of approved spent fuel storage casks that power reactor licensees can use to store spent fuel at reactor sites under a general license. Specifically, Amendment No. 2 adds new fuel types to the HI-STORM FW MPC Storage System, includes new criticality calculations, updates an existing fuel type description, includes changes previously submitted in Amendment No. 0 to CoC No. 1032 Revision 1, and revises CoC Condition No. 8 to provide additional clarity and guidance.

On July 18,1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent fuel under a general license in cask designs approved by the NRC. The potential environmental impact of using NRC-approved storage casks was initially analyzed in the environmental assessment for the 1990 final rule. The environmental assessment for this Amendment No. 2 tiers off of the environmental assessment for the July 18, 1990, final rule. Tiering on past environmental assessments is a standard process under the National Environmental Policy Act.

Holtec HI-STORM FW MPC Storage System casks are designed to mitigate the effects of design basis accidents that could occur during storage. Design basis accidents account for human-induced events and the most severe natural phenomena reported for the site and surrounding area. Postulated accidents analyzed for an Independent Spent Fuel Storage Installation, the type of facility at which a holder of a power reactor operating license would store spent fuel in casks in accordance with 10 CFR part 72, include tornado winds and tornado-generated missiles, a design basis earthquake, a design basis flood, an accidental cask drop, lightning effects, fire, explosions, and other incidents.

Considering the specific design requirements for each accident condition, the design of the cask would prevent loss of confinement, shielding, and criticality control. If there is no loss of confinement, shielding, or criticality control, the environmental impacts would be insignificant. This amendment does not reflect a significant change in design or fabrication of the cask. There are no significant changes to cask design requirements in the proposed CoC amendment. In addition, because there are no significant design or process changes, any resulting occupational exposure or offsite dose rates from the implementation of Amendment No. 2 would remain well within the 10 CFR part 20 limits. Therefore, the proposed CoC changes will not result in any radiological or non-radiological environmental impacts that significantly differ from the environmental impacts evaluated in the environmental assessment supporting the July 18, 1990, final rule. There will be no significant change in the types or significant revisions in the amounts of any effluent released, no significant increase in the individual or cumulative radiation exposure, and no significant increase in the potential for or consequences from radiological accidents. The staff documented its safety findings in the PSER for this amendment, which is available in ADAMS under Accession No. ML16054A624.

The alternative to this action is to deny approval of Amendment No. 2 and end the direct final rule. Consequently, any 10 CFR part 72 general licensee that seeks to load spent nuclear fuel into Holtec HI-STORM FW MPC Storage System casks in accordance with the changes described in proposed Amendment No. 2 would have to request an exemption from the requirements of 10 CFR 72.212 and 72.214. Under this alternative, an interested licensee would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee. Because licensees could still receive approval for use of this cask through a different and more burdensome administrative process, environmental impacts of the proposed action would be the same as or less than the no-action alternative.

Approval of Amendment No. 2 to CoC No. 1032 would result in no irreversible commitments of resources.

No agencies or persons outside the NRC were contacted in connection with the preparation of this environmental assessment.

The environmental impacts of the action have been reviewed under the requirements in 10 CFR part 51. Based on the foregoing environmental assessment, the NRC concludes that this direct final rule entitled, “List of Approved Spent Fuel Storage Casks: Holtec International HI-STORM Flood/Wind Multipurpose Canister Storage System, Amendment No. 2” will not have a significant effect on the human environment. Therefore, the NRC has determined that an environmental impact statement is not necessary for this direct final rule.

This rule does not contain any information collection requirements, and is therefore not subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this direct final rule will not, if issued, have a significant economic impact on a substantial number of small entities. This direct final rule affects only nuclear power plant licensees and Holtec. These entities do not fall within the definition of small entities set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent nuclear fuel under a general license in casks with designs approved by the NRC. Any nuclear power reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if it notifies the NRC in advance, the spent fuel is stored under the conditions specified in the cask's CoC, and the conditions of the general license are met. A list of NRC-approved cask designs is contained in 10 CFR 72.214. On March 28, 2011 (76 FR 17019), the NRC issued a direct final rule that approved the Holtec HI-STORM FW MPC Storage System design by adding it to the list of NRC-approved cask designs in 10 CFR 72.214, as CoC No. 1032.

By letter dated March 31, 2015 (ADAMS Accession No. ML15092A130), and as supplemented on April 9, 2015 (ADAMS Accession No. ML15114A423), June 19, 2015 (ADAMS Accession No. ML15170A433), and August 14, 2015 (ADAMS Accession No. ML15233A038), Holtec submitted an application to amend the Holtec HI-STORM FW MPC Storage System as described in Section IV, “Discussion of Changes,” of this document.

The alternative to this action is to withhold approval of Amendment No. 2 and to require any 10 CFR part 72 general licensee seeking to load spent nuclear fuel into Holtec HI-STORM FW MPC Storage System casks under the changes described in Amendment No. 2 to request an exemption from the requirements of 10 CFR 72.212 and 72.214. Under this alternative, each interested 10 CFR part 72 licensee would have to prepare, and the NRC would have to review, a separate exemption request, thereby increasing the administrative burden upon the NRC and the costs to each licensee.

Issuance of this direct final rule is consistent with previous NRC actions. Further, as documented in the PSER and the environmental assessment, the direct final rule will have no adverse effect on public health and safety or the environment. This direct final rule has no significant identifiable impact or benefit on other Government agencies. Based on this regulatory analysis, the NRC concludes that the requirements of the direct final rule are commensurate with the NRC's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory, and therefore, this action is recommended.

The NRC has determined that the backfit rule (10 CFR 72.62) does not apply to this direct final rule. Therefore, a backfit analysis is not required. This direct final rule revises CoC No. 1032 for the Holtec HI-STORM FW MPC Storage System, as currently listed in 10 CFR 72.214, “List of Approved Spent Fuel Storage Casks.” Amendment No. 2 adds new fuel types to the HI-STORM FW MPC Storage System, includes new criticality calculations, updates an existing fuel type description, includes changes previously incorporated in Amendment No. 0 to CoC No. 1032, Revision 1, and revises CoC Condition No. 8 to provide additional clarity and guidance.

Amendment No. 2 to CoC No. 1032 for the Holtec HI-STORM FW MPC Storage System was initiated by Holtec and was not submitted in response to new NRC requirements, or an NRC request for amendment. Amendment No. 2 applies only to new casks fabricated and used under Amendment No. 2. These changes do not affect existing users of the Holtec HI-STORM FW MPC Storage System, and the current Amendment No. 1 continues to be effective for existing users. While current CoC users may comply with the new requirements in Amendment No. 2 this would be a voluntary decision on the part of current users. For these reasons, Amendment No. 2 to CoC No. 1032 does not constitute backfitting under 10 CFR 72.62 or 10 CFR 50.109(a)(1), or otherwise represent an inconsistency with the issue finality provisions applicable to combined licenses in 10 CFR part 52. Accordingly, no backfit analysis or additional documentation addressing the issue finality criteria in 10 CFR part 52 has been prepared by the staff.

The Office of Management and Budget has not found this to be a major rule as defined in the Congressional Review Act.

The documents identified in the following table are available to interested persons as indicated.

The NRC may post materials related to this document, including public comments, on the Federal rulemaking Web site at http://www.regulations.gov under Docket ID NRC-2016-0103. The Federal rulemaking Web site allows you to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) Navigate to the docket folder (NRC-2016-0103); (2) click the “Sign up for Email Alerts” link; and (3) enter your email address and select how frequently you would like to receive emails (daily, weekly, or monthly).

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; the Nuclear Waste Policy Act of 1982, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting the following amendments to 10 CFR part 72.

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2006-18-14, Amendment 39-14753 (71 FR 52988, September 8, 2006), (“AD 2006-18-14”). AD 2006-18-14 applied to the specified products. The NPRM published in the Federal Register on March 11, 2016 (81 FR 12841). The NPRM proposed to require calculating and re-establishing the cyclic life of stage 1 HPT disks, P/N JR32013 and P/N JR33838, and stage 1 LPT disk, P/N JR32318A. The NPRM also proposed to require removing from service, using a drawdown schedule, those stage 1 HPT disks and stage 1 LPT disks operated under Tay 650-15 engine flight plan profiles A, B, C, or D; or operated under the Tay 651-54 engine datum flight profile, at reduced cyclic life limits found in the RRD Time Limits Manual (TLM) T-TAY-3RR, Chapter 05, Time Limits, Subject 05-10-01, dated September 15, 2014 and T-TAY-5RR, Chapter 05-10-01, dated September 15, 2014.

We gave the public the opportunity to participate in developing this AD. We considered the comments received.

We removed Alert Non-Modification Service Bulletin (NMSB) No. TAY-72-A1821, Revision 1, dated March 26, 2015 from Related Service Information under 1 CFR part 51, which is not incorporated by reference in this AD.

We added the RRD TLM T-TAY-3RR, Chapter 05, Time Limits, Subject 05-10-01, dated September 15, 2014.

RRD requests that the cyclic life limits for the HPT stage 1 disk, P/N JR33838, installed in RRD Tay 650-15 and Tay 651-54 engines to be changed in this AD to match the life limits found in the RRD TLM T-TAY-3RR, Chapter 05, Time Limits, Subject 05-10-01, dated September 15, 2014 and the RRD TLM T-TAY-5RR, Chapter 05-10-01, dated September 15, 2014. RRD updated their lifing analysis for the HPT stage 1 disk, P/N JR33838 and their new analysis justified an increased cyclic life limit for the HPT stage 1 disk, P/N JR33838 installed in the RRD Tay 650-15 and Tay 651-54 engines for certain flight profiles. These life increases were reflected in the applicable service bulletin and the TLM and the FAA did not have an opportunity to mandate the increase in the cyclic life limits via AD until now. The FAA previously addressed the increase in the life limits via a global AMOC.

We agree. The FAA accepts RRD's new lifing analysis. We changed the cyclic life limits in paragraphs (e)(3)(i)(B), (C), and (D) of this AD for the HPT stage 1 disk, P/N JR33838, installed in RRD Tay 650-15 engines to 21,000 flight cycles since new (FCSN), 18,000 FCSN, and 14,250 FCSN for flight profiles B, C, and D, respectively. We also changed the cyclic life limit in paragraph (e)(3)(i)(E) of this AD for the HPT stage 1 disk, P/N JR33838, installed in RRD Tay 651-54 engines to 14,250 FCSN for any flight profile.

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

RRD TLM T-TAY-3RR, Chapter 05, Time Limits, Subject 05-10-01, dated September 15, 2014, contains information on re-calculating the cyclic life. 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.

RRD TLM T-TAY-5RR, Chapter 05-10-01, dated September 15, 2014 provides the new, reduced cyclic life limits for RRD Tay 651-54 engines operated under any engine flight plan profile.

RRD Alert Non-Modification Service Bulletin TAY-72-A1821, Revision 1, dated March 26, 2015, provides reduced cyclic life limits for RRD Tay 650-15 and RRD Tay 651-54 engines operated under various affected flight plan profiles.

We estimate that this AD affects 25 engines installed on airplanes of U.S. registry. We also estimate that it would take about 0.5 hours per engine to comply with this AD. The average labor rate is $85 per hour. The pro-rated life limit reduction cost is about $23,053 per engine. Based on these figures, we estimate the cost of this AD on U.S. operators to be $577,388.

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

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

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

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

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

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

(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

Accordingly, under the authority delegated to me by the Administrator, the FAA amends part 39 of the Federal Aviation Regulations (14 CFR part 39) as follows:

Discussion

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued AD No. 2016-0151, dated July 26, 2016 (referred to after this as “the MCAI”), to correct an unsafe condition for hot air balloons with Balóny Kubíček spol. s.r.o. Model Kubíček burners equipped with fuel hoses made of “EGEFLEX” material. The MCAI states:

BALÓNY KUBÍČEK spol. s r.o. has issued Service Bulletin No. BB/50, BB-S/11, AB24 rev.1, dated May 12, 2016. The service information describes procedures for replacing all fuel lines on burners that utilize EGEFLEX hoses. 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 of this AD.

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 this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are issuing this AD because we evaluated all information provided by the State of Design Authority and determined the unsafe condition exists and is likely to exist or develop on type certificated products that incorporate the affected burners.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because this condition could result in a fire, damaging the balloon and its envelope, ultimately leading to an emergency landing, with consequent injury to the occupants and persons on the ground. Therefore, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in fewer than 30 days.

This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-8989; Directorate Identifier 2016-CE-025-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD 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 AD.

We estimate that this AD will affect 6,400 products of U.S. registry. We also estimate that it will take about 0.5 work-hour per product to comply with the basic inspection requirement 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 $272,000, or $42.50 per product.

In addition, we estimate that any necessary follow-on actions will take about 2 work-hours and require parts costing $200, for a cost of $370 per product. We have no way of determining the number of hot air balloons that may need the replacement, but we estimate that it will affect no more than 60 hot air balloons.

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

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

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

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

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

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

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

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

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

Background

The Entity List (Supplement No. 4 to part 744) identifies entities and other persons reasonably believed to be involved, or to pose a significant risk of being or becoming involved, in activities contrary to the national security or foreign policy interests of the United States. The EAR imposes additional license requirements on, and limits the availability, of most license exceptions for, exports, reexports, and transfers (in-country) to those listed. The “license review policy” for each listed entity or other person is identified in the License Review Policy column on the Entity List and the impact on the availability of license exceptions is described in the Federal Register notice adding entities or other persons to the Entity List. BIS places entities and other persons on the Entity List pursuant to sections of part 744 (Control Policy: End-User and End-Use Based) and part 746 (Embargoes and Other Special Controls) of the EAR.

The ERC, composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and all decisions to remove or modify an entry by unanimous vote.

This rule implements the decision of the ERC to add ten persons under fourteen entries to the Entity List. These ten persons are being added on the basis of § 744.11 (License requirements that apply to entities acting contrary to the national security or foreign policy interests of the United States) of the EAR. The fourteen entries added to the entity list consist of three entries in Iraq, one entry in the Philippines, four entries in Syria, and six entries in Turkey. There are fourteen entries for the ten persons because two of the persons are listed in multiple locations, resulting in four additional entries.

The ERC reviewed § 744.11(b) (Criteria for revising the Entity List) in making the determination to add these ten persons under fourteen entries to the Entity List. Under that paragraph, persons and those acting on behalf of such persons may be added to the Entity List if there is reasonable cause to believe, based on specific and articulable facts, that they have been involved, are involved, or pose a significant risk of being or becoming involved in, activities that are contrary to the national security or foreign policy interests of the United States. Paragraphs (b)(1) through (5) of § 744.11 include an illustrative list of activities that could be contrary to the national security or foreign policy interests of the United States.

Pursuant to § 744.11(b)(1) of the EAR, the ERC determined that nine persons, located in the destinations of Iraq, Syria and Turkey, be added to the Entity List for actions contrary to the national security or foreign policy interests of the United States. The ERC determined that there is reasonable cause to believe, based on specific and articulable facts, that Sekirin (Sekirin Tekstil lthalat Ihracat Ic ve Dis Ticaret Limited Sirketi), Yildiz (Ag Yildiz Insaat Gayrimenkul Tasimacilik Pazarlama Ithalat Ihracat ve Ticaret Ltd. Sirketi), and their seven associates (Luqman Yasin Yunus Shgragi, Yunus Luqman Yasin Shgragi, Abd Al Hakim Luqman Jasim Muhammad, Muhammad `ulwan Al-Shawi, Ala al-Shawi, Ali Guzel, and Jamal Jum'ah al-Shawi) have been involved in actions contrary to the national security or foreign policy interests of the United States. Sekirin, Yildiz, and their seven associates have been involved in activities that are contrary to the national security and foreign policy interests of the United States by supporting persons engaged in acts of terror as set forth in § 744.11(b)(1) of the EAR. Specifically, these entities have been providing logistical and material support to the Islamic State of Iraq and the Levant (ISIL).

In addition, pursuant to § 744.11(b), the ERC determined that one person, located in the Philippines, should be added to the Entity List for actions contrary to the national security or foreign policy interests of the United States. The ERC determined that there is reasonable cause to believe, based on specific and articulable facts, that Warren Sumaylo, has been involved in actions contrary to the national security or foreign policy interests of the United States. Specifically, in July 2014, Warren Sumaylo was indicted for exporting weapon sights and rifle scopes to the Philippines in violation of the EAR and the International Traffic in Arms Regulations (ITAR).

Pursuant to § 744.11(b) of the EAR, the ERC determined that the conduct of these ten persons raises sufficient concern that prior review of exports, reexports or transfers (in-country) of items subject to the EAR involving these persons, and the possible imposition of license conditions or license denials on shipments to the persons, will enhance BIS's ability to prevent violations of the EAR. Therefore, these ten persons are being added to the Entity List under fourteen entries.

For the ten persons under fourteen entries added to the Entity List, BIS imposes a license requirement for all items subject to the EAR and a license review policy of presumption of denial. The license requirements apply to any transaction in which items are to be exported, reexported, or transferred (in-country) to any of the persons or in which such persons act as purchaser, intermediate consignee, ultimate consignee, or end-user. In addition, no license exceptions are available for exports, reexports, or transfers (in-country) to the persons being added to the Entity List in this rule. The acronym “a.k.a.” (also known as) is used in entries on the Entity List to help exporters, reexporters and transferors better identify listed persons on the Entity List.

This final rule adds the following ten persons under fourteen entries to the Entity List:

(1) Abd Al Hakim Luqman Jasim Muhammad,

Al Faysaliyah, Mosul, Iraq;

(2) Ag Yildiz Insaat Gayrimenkul Tasimacilik Pazarlama lthalat Ihracat ve Ticaret Ltd. Sirketi, a.k.a., the following four aliases:

Irbil, Iraq; and Mosul, Iraq (See alternate addresses under Syria and Turkey); and

(3) Sekirin Tekstil Ithalat Ihracat le ve Dis Ticaret Limited Sirketi, a.k.a., the following seven aliases:

Al Faysaliyah, Mosul, Iraq (See alternate addresses under Syria and Turkey).

(1) Warren Sumaylo,

053 E Luna Street, Bgry Sikatuna, Butuan City, Philippines.

(1) Ag Yildiz Insaat Gayrimenkul Tasimacilik Pazarlama lthalat Ihracat ve Ticaret Ltd. Sirketi, a.k.a. the following four aliases:

Al Bab, Syria (See alternate addresses under Iraq and Turkey);

(2) Jamal Jum'ah al-Shawi,

Al Bab, Syria;

(3) Muhammad `ulwan Al-Shawi,

Al Bab, Syria; and

(4) Sekirin Tekstil Ithalat Ihracat le ve Dis Ticaret Limited Sirketi, a.k.a., the following seven aliases:

Background

On July 28, 2003, the President signed into law the Burmese Freedom and Democracy Act of 2003 (Pub. L. 108-61) (the “BFDA”) to sanction the military junta then ruling Burma. Among other provisions, the BFDA required the imposition, subject to annual renewal, of a ban on the importation into the United States of any article that is a product of Burma. To implement the BFDA, the President issued Executive Order (“E.O.”) 13310 (68 FR 44853, July 30, 2003). E.O. 13310 prohibited, among other things, the importation into the United States of any article that is a product of Burma.

On July 29, 2008, the President signed into law the Tom Lantos Block Burmese JADE (Junta's Anti-Democratic Efforts) Act of 2008 (Pub. L. 110-286) (the “JADE Act”), which, among other things, amended the BFDA to require a prohibition on the importation into the United States of jadeite or rubies mined or extracted from Burma and articles of jewelry containing such jadeite or rubies, referred to in the statute as Burmese covered articles. It also imposed certain conditions on the importation into the United States of jadeite or rubies mined or extracted from a country other than Burma and articles of jewelry containing such jadeite or rubies, referred to in the statute as non-Burmese covered articles. Section 12.151 of the CBP regulations (Title 19, Code of Federal Regulations (“CFR”), section 12.151) currently reflects this prohibition on the importation of jadeite or rubies mined or extracted from Burma and articles of jewelry containing such jadeite or rubies as well as the imposition of certain conditions on the importation of jadeite or rubies mined or extracted from a country other than Burma and articles of jewelry containing such jadeite or rubies.

The BFDA, as amended by the JADE Act, required annual renewal, which did not occur in 2013. As a result, the prohibition on the importation of jadeite or rubies mined or extracted from Burma and articles of jewelry containing jadeite or rubies mined or extracted from Burma and the corresponding conditions on the importation of jadeite or rubies mined or extracted from a country other than Burma and articles of jewelry containing jadeite or rubies mined or extracted from a country other than Burma expired on July 28, 2013. Subsequently, on August 6, 2013, the President signed E.O. 13651, titled “Prohibiting Certain Imports of Burmese Jadeite and Rubies” which prohibits the importation of any jadeite or rubies mined or extracted from Burma as well as any articles of jewelry containing jadeite or rubies mined or extracted from Burma. See 78 FR 48793. E.O. 13651 also revoked the sections of E.O. 13310 imposing a prohibition on the importation into the United States of any article that is a product of Burma. As a result, there is no longer a general ban on importing into the United States any article that is a product of Burma; however, the specific ban on jadeite and rubies mined or extracted from Burma as well as articles of jewelry containing jadeite or rubies mined or extracted from Burma was reinstituted by E.O. 13651.

Section 12.151 is amended to reflect the expiration of the BFDA, as amended by the JADE Act, and the issuance of E.O. 13651. The specific authority citation for section 12.151 is amended accordingly by removing references to the BFDA, as amended by the JADE Act, Presidential Proclamation 8294, signed on September 26, 2008, and Additional U.S. Note 4 to Chapter 71 of the U.S. Harmonized Tariff Schedule (HTSUS), and adding a reference to the current authority, E.O. 13651, of August 6, 2013 (78 FR 48793). While E.O. 13651 re-imposes the prohibition on the importation of jadeite and rubies mined or extracted from Burma and articles of jewelry containing such jadeite and rubies, it does not impose any conditions on the importation of jadeite and rubies mined or extracted from a country other than Burma or articles of jewelry containing jadeite or rubies mined or extracted from a country other than Burma as the BFDA, as amended by the JADE Act, did. Accordingly, section 12.151 is amended by removing paragraphs (c) through (f) which detail the certification and recordkeeping requirements for non-Burmese covered articles (referred to in section12.151 as “regulated articles”).

In addition, the heading to section 12.151 is revised to reflect the expiration of conditions on non-Burmese covered articles by removing the words “and conditions”. The heading is further revised to more specifically refer to jadeite or rubies mined or extracted from Burma and articles of jewelry containing jadeite or rubies mined or extracted from Burma.

The introductory text in paragraph (a) of section 12.151 is amended to remove the reference to the Tom Lantos Block Burmese JADE Act of 2008 (Pub. L. 110-286) and to cite instead to the current authority, E.O. 13651 of August 6, 2013 (78 FR 48793). Paragraph (a) is also amended to reflect the expiration of conditions on non-Burmese covered articles by removing the words “or conditioned”. Given that E.O. 13651 does not impose any conditions on jade or rubies mined or extracted from a country other than Burma or articles of jewelry containing jade or rubies mined or extracted from a country other than Burma, it is no longer necessary to distinguish between “prohibited articles” and “regulated articles”. As a result of the amendments described in this document, the list of prohibited articles, which is currently set forth in paragraph (b), is set forth in revised paragraph (a). Paragraph (b) is revised to set forth the exception currently found in paragraph (g)(1) as E.O. 13651 retains the exception for prohibition on the import of Burmese jadeite or rubies or articles of jewelry containing Burmese jadeite or rubies that were previously exported from the United States, including those that accompanied an individual outside the United States for personal use, provided that they are reimported to the United States by the same person who exported them, without having been advanced in value or improved in condition by any process or other means while outside the United States (E.O. 13651 (78 FR 48793)). Given that E.O. 13651 does not impose any conditions on jade or rubies mined or extracted from a country other than Burma or articles of jewelry containing jade or rubies mined or extracted from a country other than Burma, subparagraph (g)(2) is removed.

CBP advises parties who plan to temporarily export any jadeite or rubies or any article of jewelry containing jadeite or rubies, whether of Burmese origin or not, to register those articles prior to export through CBP Form 4455 (Certificate of Registration), CBP Form 4457 (Certificate of Registration for Personal Effects Taken Abroad), or a carnet issued by the U.S. Council for International Business. If one of these three documents is not presented to CBP at the time of re-importation into the United States, the importer must present documentary evidence that supports the claim that the subject articles were exported and reimported by the same person without having been advanced in value or improved in condition by any process or other means while outside the United States. Without such documentation, the articles are subject to seizure by CBP.

The list of records and information required for the entry of merchandise appearing in the Appendix to Part 163 (commonly known as the (a)(1)(A) List) is amended to remove the records previously required to support the certification of non-Burmese covered articles under section 3A(c)(1) of the BFDA.

This document amends the regulations to reflect Executive Order 13651 of August 6, 2013. Because this regulation merely removes expired statutory requirements and inserts the new legal authority for the continuing import prohibition, CBP has determined, pursuant to the provisions of 5 U.S.C. 553(b)(B), that prior public notice and comment procedures on this regulation are impracticable and contrary to the public interest and that there is good cause for this rule to become effective immediately upon publication. For these reasons, pursuant to the provision of 5 U.S.C. 553(d)(3), CBP finds that there is good cause for dispensing with a delayed effective date.

Executive Orders 13563 and 12866 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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is not a “significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget has not reviewed this regulation.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996, requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of a proposed rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions) when the agency is required to publish a general notice of proposed rulemaking for a rule. As a general notice of proposed rulemaking is not necessary for this rule, CBP is not required to prepare a regulatory flexibility analysis for this rule.

Under the Paperwork Reduction Act, 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 OMB control number. The collections of information in this final rule were previously approved by the Office of Management and Budget (OMB) in accordance with the requirements of the Paperwork Reduction Act (44 U.S.C. 3507) under control number 1651-0133. However this information collection and control number were discontinued in 2014 when the requirement for submission of the certification from the exporter was eliminated.

This regulation is being issued in accordance with 19 CFR 0.1(a)(1) pertaining to the Secretary of the Treasury's authority (or that of his delegate) to approve regulations related to certain customs revenue functions.

For the reasons set forth in the preamble, parts 12 and 163 of title 19 of the Code of Federal Regulations (19 CFR parts 12 and 163) are amended as set forth below.

Background

The final regulations (TD 9777) that are the subject of this correction are under section 148 of the Internal Revenue Code.

As published, the final regulation (TD 9777) contains errors that may prove to be misleading and are in need of clarification.

Accordingly, 26 CFR part 1 is amended by making the following correcting amendment:

Background

The final regulations (TD 9777) that are the subject of this correction are under section 148 of the Internal Revenue Code.

As published, the final regulation (TD 9777) contains errors that may prove to be misleading and are in need of clarification.

Accordingly, the final regulation (TD 9777), that is the subject of FR Doc. 2016-16558, are corrected as follows:

I. Table of Abbreviations BNM Broadcast Notice to Mariners CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register LNM Local Notice to Mariners NPRM Notice of proposed rulemaking § Section U.S.C. United States Code UMR Upper Mississippi River 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 the Coast Guard was not notified of the fireworks display until July 8, 2016. After full review of the details for the planned and locally advertised displays, the Coast Guard determined action is needed to protect people and property from the safety hazards associated with the fireworks display on the UMR near St. Louis, MO. It is impracticable to publish an NPRM because we must establish this safety zone by September 3, 2016.

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 the rule is contrary to the public interest as it would delay the effectiveness of the temporary safety zone needed to respond to potential related safety hazards until after the planned fireworks display.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP has determined that potential hazards associated with the fireworks display will be a safety concern before, during, and after the display. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone before, during, and after the scheduled event.

This rule establishes a safety zone from 8:30 p.m. to 10:30 p.m. on September 3, 2016. The safety zone will cover all navigable waters between miles 180 and 180.5 on the UMR in St. Louis, MO. Exact times of the closures and any changes to the planned schedule will be communicated to mariners using BNM and LNM. The safety zone is intended to ensure the safety of vessels and these navigable waters before, during and after the fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

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

This temporary final rule establishes a safety zone impacting a one-half mile area on the UMR for a limited time period of two hours. During the enforcement period, vessels are prohibited from entering into or remaining within the safety zone unless specifically authorized by the COTP or other designated representative. Based on the location, limited safety zone area, and short duration of the enforcement period, this rule does not pose a significant regulatory impact. Additionally, notice of the safety zone or any changes in the planned schedule will be made via BNM and LNM. Deviation from this rule may be requested from the COTP or other designated representative and will be considered on a case-by-case basis.

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 these rules. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting two hours that will prohibit entry from mile 180 to 180.5 on the UMR. 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 are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

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

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

This is a procedural action to extend the deadline for the EPA to respond to a petition from the state of Delaware filed pursuant to CAA section 126(b). The EPA received the petition on July 7, 2016. The petition requests that the EPA make a finding under section 126(b) of the CAA that the Brunner Island Steam Electric Station located in York County, Pennsylvania, is operating in a manner that emits air pollutants in violation of the provisions of section 110(a)(2)(D)(i)(I) of the CAA with respect to the 2008 and 2015 ozone NAAQS.

Section 126(b) of the CAA authorizes states to petition the EPA to find that a major source or group of stationary sources in upwind states emits or would emit any air pollutant in violation of the prohibition of CAA section 110(a)(2)(D)(i) 1 by contributing significantly to nonattainment or maintenance problems in downwind states. Section 110(a)(2)(D)(i)(I) of the CAA prohibits emissions of any air pollutant in amounts which will contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to any NAAQS. The petition asserts that emissions from the Brunner Island's three major boiler units significantly contribute to Delaware's nonattainment of the 2008 8-hour ozone NAAQS, set at 0.075 parts per million (ppm), and the revised 2015 8-hour ozone NAAQS, set at 0.070 ppm.2

Pursuant to CAA section 126(b), the EPA must make the finding requested in the petition, or must deny the petition within 60 days of its receipt. Under CAA section 126(c), any existing sources for which the EPA makes the requested finding must cease operations within 3 months of the finding, except that the source may continue to operate if it complies with emission limitations and compliance schedules (containing increments of progress) that the EPA may provide to bring about compliance with the applicable requirements as expeditiously as practical but no later than 3 years from the date of the finding.

CAA section 126(b) further provides that the EPA must hold a public hearing on the petition. The EPA's action under section 126 is also subject to the procedural requirements of CAA section 307(d). See CAA section 307(d)(1)(N). One of these requirements is notice-and-comment rulemaking, under section 307(d)(3)-(6).

In addition, CAA section 307(d)(10) provides for a time extension, under certain circumstances, for a rulemaking subject to CAA section 307(d). Specifically, CAA section 307(d)(10) provides:

CAA section 307(d)(10) may be applied to section 126 rulemakings because the 60-day time limit under CAA section 126(b) necessarily limits the period for promulgation of a final rule after proposal to less than 6 months.

In accordance with CAA section 307(d)(10), the EPA is determining that the 60-day period afforded by CAA section 126(b) for responding to the petition from the state of Delaware is not adequate to allow the public and the agency the opportunity to carry out the purposes of CAA section 307(d). Specifically, the 60-day period is insufficient for the EPA to complete the necessary technical review, develop an adequate proposal, and allow time for notice and comment, including an opportunity for public hearing, on a proposed finding regarding whether the Brunner Island Steam Electric Station identified in the CAA section 126 petition contributes significantly to nonattainment or interferes with maintenance of the 2008 ozone NAAQS or the 2015 ozone NAAQS in Delaware. Moreover, the 60-day period is insufficient for the EPA to review and develop response to any public comments on a proposed finding, or testimony supplied at a public hearing, and to develop and promulgate a final finding in response to the petition. The EPA is in the process of determining an appropriate schedule for action on the CAA section 126 petition. This schedule must afford the EPA adequate time to prepare a proposal that clearly elucidates the issues to facilitate public comment, and must provide adequate time for the public to comment and for the EPA to review and develop responses to those comments prior to issuing the final rule. As a result of this extension, the deadline for the EPA to act on the petition is March 5, 2017.

This document is a final agency action, but may not be subject to the notice-and-comment requirements of the APA, 5 U.S.C. 553(b). The EPA believes that, because of the limited time provided to make a determination, the deadline for action on the CAA section 126 petition should be extended. Congress may not have intended such a determination to be subject to notice-and-comment rulemaking. However, to the extent that this determination otherwise would require notice and opportunity for public comment, there is good cause within the meaning of 5 U.S.C. 553(b)(3)(B) not to apply those requirements here. Providing for notice and comment would be impracticable because of the limited time provided for making this determination, and would be contrary to the public interest because it would divert agency resources from the substantive review of the CAA section 126 petition.

This action is effective on August 23, 2016. Under the APA, 5 U.S.C. 553(d)(3), agency rulemaking may take effect before 30 days after the date of publication in the Federal Register if the agency has good cause to mandate an earlier effective date. This action—a deadline extension—must take effect immediately because its purpose is to extend by 6 months the deadline for action on the petition. As discussed earlier, the EPA intends to use the 6-month extension period to develop a proposal on the petition and provide time for public comment before issuing the final rule. It would not be possible for the EPA to complete the required notice and comment and public hearing process within the original 60-day period noted in the statute. These reasons support an immediate effective date.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

This action does not impose an information collection burden under the PRA. This good cause final action simply extends the date for the EPA to take action on a petition and does not impose any new obligations or enforceable duties on any state, local or tribal governments or the private sector. It does not contain any recordkeeping or reporting requirements.

This action is not subject to the RFA. The RFA applies only to rules subject to notice-and-comment rulemaking requirements under the APA, 5 U.S.C. 553, or any other statute. This rule is not subject to notice-and-comment requirements because the agency has invoked the APA “good cause” exemption under 5 U.S.C. 553(b).

This action does not contain any 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.

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.

This action does not have tribal implications, as specified in Executive Order 13175. This good cause final action simply extends the date for the EPA to take action on a petition. Thus, Executive Order 13175 does not apply to this rule.

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

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

This rulemaking does not involve technical standards.

The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This good cause final action simply extends the date for the EPA to take action on a petition and does not have any impact on human health or the environment.

This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice-and-comment rulemaking procedures are impracticable, unnecessary or contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a good cause finding for this rule as discussed in Section II.B of this document, including the basis for that finding.

The statutory authority for this action is provided by sections 110, 126 and 307 of the CAA as amended (42 U.S.C. 7410, 7426 and 7607).

Under section 307(b)(1) of the CAA, judicial review of this final rule is available only by the filing of a petition for review in the U.S. Court of Appeals for the appropriate circuit by October 24, 2016. Under section 307(b)(2) of the CAA, the requirements that are the subject of this final rule may not be challenged later in civil or criminal proceedings brought by us to enforce these requirements.

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This SUPPLEMENTARY INFORMATION section is arranged as follows:

EPA's final rule designating nonattainment areas and associated classifications for the 2008 ozone National Ambient Air Quality Standards (NAAQS) was published in the Federal Register on May 21, 2012 (77 FR 30088). A portion of Kenosha County was designated as marginal nonattainment. The Kenosha County 2008 8-hour ozone nonattainment area had been previously designated nonattainment as part of the larger Milwaukee area for the 1997 8-hour ozone standard and had MVEBs for NOX and VOC established in the Wisconsin 1997 8-hour maintenance plan SIP. Consequently, the transportation partners in the Kenosha area have to use the 1997 8-hour ozone nonattainment MVEBs for the Milwaukee area to demonstrate transportation conformity for the 2008 8-hour ozone standard until new MVEBs are approved or found adequate, as required by the transportation conformity rule at 40 CFR 93.109(c)(2)(i). Wisconsin submitted this plan to establish new MVEBs for Kenosha County developed with EPA's MOVES2014 model.

EPA allows for the establishment of MVEBs for the 2008 8-hour ozone standard prior to a state submitting its first required 2008 8-hour ozone SIP that would include new MVEBs. Although voluntary, these “early” MVEBs must be established through a plan that meets all the requirements of a SIP submittal. This plan is known as the “Early Progress Plan.” Specifically and in reference to Early Progress Plans, the preamble of the July 1, 2004, final transportation conformity rule (see, 69 FR 40019) reads as follows:

The Early Progress Plan must demonstrate that the SIP revision containing the MVEBs, when considered with emissions from all sources, and when projected from the base year to a future year, shows progress toward attainment. EPA has previously indicated that a 5 percent to 10 percent reduction in emissions from all sources could represent a significant level of emissions reductions from current levels (69 FR 40019). This allowance is provided so that areas have an opportunity to use the budget test to demonstrate conformity as opposed to the interim conformity tests (i.e., 2002 baseline test and/or action versus baseline test). The budget test with an adequate or approved SIP budget is generally more protective of air quality and provides a more relevant basis for conformity determinations than the interim emissions test. (69 FR 40026).

It should also be noted that the Early Progress Plan is not a required plan and does not substitute for required submissions such as an attainment demonstration or rate-of-progress plan, if such plans become required for the Kenosha 8-hour ozone area.

On January 16, 2015, the State submitted to EPA an Early Progress Plan for the sole purpose of establishing MVEBs for the Kenosha 2008 8-hour ozone nonattainment area. The submittal utilizes a base year of 2011, and a projected year 2015 to establish NOX and VOC MVEBs. The planning assumptions used to develop the MVEBs were discussed and agreed to by the Kenosha interagency consultation group, which consists of the transportation and air quality partners in the Kenosha 2008 8-hour ozone nonattainment area. Tables 1 and 2 below show the differences by source categories between the 2011 base year and 2015 forecast year. The NOX and VOC emissions in tons per day (tpd) within the Kenosha nonattainment area are expected to decrease significantly, 6.9 percent and 8.9 percent, respectively, between 2011 and 2015. These emission trends demonstrate that progress will be made towards attainment of the 2008 8-hour ozone NAAQS.

EPA found these MVEBs adequate for transportation conformity purposes in an earlier action (80 FR 17428, April 1, 2015). As of April 16, 2015, the effective date of EPA's adequacy finding for these MVEBs, conformity determinations in Kenosha County must meet the budget test using these 2008 8-hour ozone MVEBs, instead of the 1997 8-hour ozone MVEBs. Please note that this adequacy finding does not relate to the merits of the SIP submittal, nor does it indicate whether the submittal meets the requirements for approval. This EPA rulemaking action takes formal action on the Early Progress Plan SIP revision.

Through this rulemaking, EPA is approving the 2015 regional MVEBs for NOX and VOC for the Kenosha County 2008 8-hour ozone nonattainment area. EPA has determined that the MVEBs contained in the Early Progress Plan SIP revision are consistent with emission reductions from all sources within the nonattainment area and are showing progress toward attainment.

The 2015 MVEBs in tpd for VOCs and NOX for the Kenosha County, Wisconsin nonattainment area are as follows:

EPA is approving Kenosha's Early Progress Plan, including the 2015 MVEBs for NOX and VOC. The Early Progress Plan demonstrates progress towards attainment of the 2008 8-hour ozone NAAQS for the Kenosha nonattainment area. The NOX and VOC emissions reductions from 2011 to 2015 for Kenosha County nonattainment areas were 6.9 percent and 8.9 percent, respectively. These emission reductions are based on control measures that are permanent and enforceable and will continue to improve air quality in the region, thus demonstrating that the MVEBs are showing progress toward attainment.

EPA issues this direct final rulemaking in response to Wisconsin's January 16, 2015 submittal of an Early Progress Plan. This revision is a voluntary SIP revision for the sole purpose of establishing MVEBs for the purpose of implementing transportation conformity in the Kenosha County 2008 8-hour ozone nonattainment area.

We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this Federal Register publication, we are publishing a separate document that will serve as the proposal to approve the State plan if relevant adverse written comments are filed. This rule will be effective October 24, 2016 without further notice unless we receive relevant adverse written comments by September 22, 2016. If we receive such comments, we will withdraw this action before the effective date by publishing a subsequent document that will withdraw the final action. All public comments received will then be addressed in a subsequent final rule based on the proposed action. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment. If we do not receive any comments, this action will be effective October 24, 2016.

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

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

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

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

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

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

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

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 24, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)

40 CFR part 52 is amended as follows:

I. Background

On June 17, 2014, the Virginia Department of Environmental Quality (VADEQ), on behalf of the Commonwealth of Virginia, submitted a formal revision to its SIP. The SIP revision consists of amendments to the definition of “nonroad engine” under VADEQ's minor NSR regulations. Virginia has a SIP approved minor NSR program located in the Virginia Administrative Code (VAC) at 9VAC 5-80 which regulates certain modifications and construction of stationary sources within areas covered by its SIP as necessary to assure the national ambient air quality standards (NAAQS) are achieved.

VADEQ's June 17, 2014 SIP submittal includes revisions to the definition of “nonroad engine” under the VAC, specifically 9VAC5-80-1110. The definition of “nonroad engine” was expanded to include portable and temporary engines. The revision to 9VAC5-80-1110 makes VADEQ's definition more consistent with the Federal definition at 40 CFR 89.2. According to VADEQ, Federal design standards for internal combustion engines and Federal fuel standards for engines are already more restrictive than permit requirements for portable and temporary engines in Virginia's minor NSR program. Virginia's amended definition adopts the Federal definition of “nonroad engine,” grouping portable engines and temporary engines together with other non-mobile engines. The revised definition will streamline Virginia's minor NSR program by no longer requiring VADEQ to issue minor NSR permits without meaningful additional emissions control requirements on those engines. Virginia asserted the amended definition does not increase emissions or otherwise affect air quality.

EPA finds these revisions are appropriate and meet the Federal requirements of 40 CFR 51.160 and 51.161, and CAA section 110(a)(2)(C) for a minor NSR program. Additionally, the revision to 9VAC5-80-1110(and in particular the deletions in the revised regulation) are in accordance with section 110(l) of the CAA because they will not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable CAA requirement.

EPA is approving VADEQ's June 17, 2014 SIP submittal and incorporating the revised regulation into Virginia's SIP. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on October 24, 2016 without further notice unless EPA receives adverse comment by September 22, 2016. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code § 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce federally authorized environmental programs in a manner that is no less stringent than their federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by federal law to maintain program delegation, authorization or approval.” Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its NSR program consistent with the federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the VADEQ rules regarding definitions and permitting requirements discussed in section II of this preamble. Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update of the SIP compilation.1 EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

For that reason, this action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 24, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action.

This action pertaining to Virginia's minor NSR program may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This SUPPLEMENTARY INFORMATION section is arranged as follows:

On July 17, 2015, IDEM submitted to EPA a request to incorporate into Indiana's SIP a revised version of 326 Indiana Administrative Code (IAC) 8-12-4, “Volatile organic compound emissions limiting requirements,” with an effective date of June 21, 2015.

Indiana's rulemaking adds, at 326 IAC 8-12-4(a)(1)(D), a VOC limit of 3.33 lbs VOC per gallon for antifoulant coatings used in shipbuilding and ship repair facilities located in Clark, Floyd, Lake, and Porter counties. In 326 IAC 8-12-3(22)(C), an “antifoulant specialty coating” is defined as any coating that is applied to the underwater portion of a vessel to prevent or reduce the attachment of biological organisms and that is registered with the EPA as a pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act. The same definition is provided in EPA's Control Techniques Guidelines (CTG) for Shipbuilding and Ship Repair Operations (Surface Coating) (61 FR 44050, August 27, 1996). Clark and Floyd counties are part of the Louisville, KY-IN maintenance area for the 1997 ozone National Ambient Air Quality Standard (NAAQS), and Lake and Porter counties are part of the Chicago-Naperville, IL-IN-WI nonattainment area for the 2008 ozone NAAQS and the Chicago-Gary-Lake County, IL-IN maintenance area for the 1997 ozone NAAQS.

Before IDEM added the revised VOC limit of 3.33 lbs VOC per gallon in 326 IAC 8-12-4(a)(1)(D), antifoulant coatings were limited by the specialty coating limit of 2.83 lbs VOC per gallon at 326 IAC 8-12-4(a)(1)(E), which IDEM has moved to 326 IAC 8-12-4(a)(1)(F) in this revision. The revised limit of 3.33 lbs VOC per gallon is consistent with the limit in Table 1-1 of EPA's Alternative Control Techniques (ACT) Document: Surface Coating Operations at Shipbuilding and Ship Repair Facilities (EPA-453/R-94-032, April 1994). In addition, it is consistent with the National Emission Standards for Hazardous Air Pollutants (NESHAP) for Shipbuilding and Ship Repair (Surface Coating) at 40 CFR part 63, subpart II. EPA's CTG identifies the limit from the ACT as Reasonably Available Control Technology (RACT), and states that the NESHAP can be used as a model rule for shipbuilding and ship repair facilities.

In Indiana's rulemaking, 326 IAC 8-12-4 is also revised to remove obsolete dates and clarify a reference to EPA's NESHAP for Shipbuilding and Ship Repair (Surface Coating) at 40 CFR 63, subpart II.

This SIP revision relies on offsets generated by the Architectural and Industrial Maintenance (AIM) coatings rule at 326 IAC 8-14 to compensate for the increase in allowable VOC emissions.

Revisions to SIP-approved control measures must meet the requirements of, among other statutory provisions, section 110(l) of the CAA in order to be approved by EPA. Section 110(l), known as EPA's anti-backsliding provision, states:

“The Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of this Act.”

In the absence of an attainment demonstration, to demonstrate no interference with any applicable NAAQS or requirement of the CAA under section 110(l), states may substitute equivalent emissions reductions to compensate for any change to a SIP-approved program, as long as actual emissions are not increased. “Equivalent” emissions reductions mean reductions which are equal to or greater than those reductions achieved by the control measure approved in the SIP. To show that compensating emissions reductions are equivalent, modeling or adequate justification must be provided. The compensating, equivalent reductions must represent actual, new emissions reductions achieved in a contemporaneous time frame to the change of the existing SIP control measure, in order to preserve the status quo level of emissions in the air. As described in EPA's memorandum “Improving Air Quality with Economic Incentive Programs” published in January 2001 (EPA-452/R-01-001), the equivalent emissions reductions must also be permanent, enforceable, quantifiable, and surplus to be approved into the SIP.

Indiana's revisions to 326 IAC 8-12-4 increase the allowable VOC content of antifoulant coatings used in shipbuilding or ship repair facilities from 2.83 lbs VOC per gallon to 3.33 lbs VOC per gallon. VOCs contribute to the formation of ground-level ozone. Thus, the potential increase in VOC needs to be offset with equivalent (or greater) emissions reductions from another VOC control measure in order to demonstrate non-interference with the 1997 ozone NAAQS or 2008 ozone NAAQS. Indiana's SIP submittal includes a 110(l) demonstration that relies on equivalent emission reductions to compensate for allowable emission increases resulting from the new VOC limit for antifoulant coatings.

326 IAC 8-12-4(a)(1)(D) currently applies to only one source, Jeffboat LLC, which operates a stationary shipbuilding and repair facility at 1030 E. Market St., Jeffersonville, Indiana, and is permitted under Title V Operating Permit T019-29304-0006. Jeffboat is located within Clark County and the Louisville, KY-IN maintenance area for the 1997 ozone NAAQS. IDEM's 110(l) demonstration consists of a calculation of the maximum possible increase in VOC emissions from this source under the revised emission limit, followed by an identification of available offsets from the AIM rule at 326 IAC 8-14.

Indiana's submittal includes calculations illustrating the maximum possible increase in VOC emissions resulting from revisions to 326 IAC 8-12-4. Based on the maximum number of barges requiring antifoulant coatings, Jeffboat may use up to 2,580 gallons per year of coatings. At the original limit of 2.83 lbs VOC per gallon coating, the source may emit 3.65 tons VOC per year. In order to correctly determine the difference in resulting emissions, the original and revised limits must be compared on a solids basis; 2.83 lbs VOC per gallon coating equates to 4.6 lbs VOC per gallon solids, and 3.33 lbs VOC per gallon coating equates to 6.08 lbs VOC per gallon solids. From these figures, the revised limit is 32% higher than the original limit. A 32% increase from 3.65 tons VOC per year amounts to an increase in emissions of 1.17 tons VOC per year, or 0.004167 tons VOC per summer day. IDEM's section 110(l) demonstration states that offsets of this amount from Indiana's AIM coatings rule are needed to compensate for the increase in allowable emissions.

IDEM's calculations are more conservative than the approach recommended by EPA. Because Jeffboat operates six days per week, or 312 days per year, 1.17 tons VOC per year amounts to 0.00375 tons VOC per summer day. However, in this rulemaking, IDEM has requested to offset the revised limit in 326 IAC 8-12-4 with credits from Indiana's AIM rule in the amount of 0.004167 tons VOC per summer day.

Indiana's AIM rule goes above and beyond the Federal AIM rule by adopting a rule that is similar to the Ozone Transport Commission (OTC) model rule “Architectural & Industrial Maintenance (AIM) Coatings” updated October 13, 2014. According to a 2006 Lake Michigan Air Directors Consortium (LADCO) white paper, the OTC model rule provides an up to 60.5% reduction in VOC emissions compared to uncontrolled 2002 base case emissions, while the Federal AIM rule alone only provides a 20% reduction compared to base case.

The Indiana AIM rule was approved into the SIP on August 30, 2012 (77 FR 52606). Indiana was not required to adopt an AIM coatings rule, but did so as a multi-state effort to help reduce ozone levels at the regional level. Indiana did not adopt the AIM rule to comply with any Indiana SIP planning requirements and has not taken credit for it in air quality plans, nor has it been included in maintenance year horizons or rate of further progress (RFP) inventories. Therefore, these SIP approved AIM limits can be used as offsets for other purposes, such as this SIP revision.

Table 1 shows additional reductions available due to the OTC model rule and Indiana AIM rule. In the table, emission estimates are based on 2011 National Emission Inventory (NEI) data, which is the most recent NEI data currently available. Total reductions, as well as summer day calculations based on average daily emissions using a multiplier of 1.3, are based on the LADCO white paper. Indiana's 110(l) demonstration shows available offsets from the AIM rule of 0.292 tons VOC per summer day.

This is a summary of the Commission's Closed Captioning of Video Programming; Telecommunications for the Deaf and Hard of Hearing, Inc., Petition for Rulemaking Second Report and Order (Second Report and Order), document FCC 16-17, adopted on February 18, 2016, and released on February 19, 2016. The full text of document FCC 16-17 will be available for public inspection and copying via ECFS, and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. Document FCC 16-17 can also be downloaded in Word or Portable Document Format (PDF) at: https://www.fcc.gov/general/disability-rights-office-headlines. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer and Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

Document FCC 16-17 contains new and modified information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, will invite the general public to comment on the information collection requirements contained in document FCC 16-17 as required by the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, the Commission notes that, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C. 3506(c)(4), the Commission previously sought comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” See Closed Captioning of Video Programming; Telecommunications for the Deaf and Hard of Hearing, Inc., Petition for Rulemaking, Report and Order, Declaratory Ruling, and Further Notice of Proposed Rulemaking, published at 79 FR 17093, March 27, 2014 (Further Notice of Proposed Rulemaking) and 79 FR 17911, March 31, 2014 (Report and Order) (references are to the Closed Captioning Quality Order when discussing parts of the Report and Order, and to the Closed Captioning Quality Further Notice when discussing parts of the Further Notice of Proposed Rulemaking).

1. Closed captioning is a technology that provides visual access to the audio content of video programs by displaying this content as printed words on the television screen. In 1997, the Commission, acting pursuant to section 713 of the Communications Act (the Act), 47 U.S.C. 713, adopted rules regarding closed captioning on television. On February 24, 2014, the Commission adopted the Closed Captioning Quality Order in which, among other things, it placed responsibility for compliance with the non-technical closed captioning quality standards on (VPDs) while simultaneously releasing the Closed Captioning Quality Further Notice to seek comment on, among other issues, extending some of the responsibilities for complying with the closed captioning quality standards to other entities involved in the production and delivery of video programming. On December 15, 2014, the Commission released a Second Further Notice seeking to supplement the record in this proceeding in response to comments received on the Closed Captioning Quality Further Notice. Closed Captioning of Video Programming; Telecommunications for the Deaf and Hard of Hearing, Inc., Petition for Rulemaking, Second Further Notice of Proposed Rulemaking, published at 79 FR 78768, December 31, 2014 (Closed Captioning Quality Second Further Notice).

2. Responsibilities of VPDs and Video Programmers. In its 1997 Closed Captioning Report and Order, the Commission placed sole responsibility for compliance with its television closed captioning rules on VPDs. Closed Captioning and Video Description of Video Programming, Implementation of Section 305 of the Telecommunications Act of 1996, Video Programming Accessibility, Report and Order, published at 62 FR 48487, September 16, 1997 (1997 Closed Captioning Report and Order). At that time, the Commission concluded that holding VPDs responsible would most expeditiously increase the availability of television programming with closed captions and promote efficiency in the Commission's monitoring and enforcement of its captioning rules. At the same time, the Commission recognized the Commission's jurisdiction, under section 713 of the Act, over both video programming providers and owners to ensure the provision of closed captioning of video programming, and noted its expectation that both “owners and producers will be involved in the captioning process.”

3. In the Closed Captioning Quality Order, the Commission similarly placed the responsibility for compliance with the non-technical closed captioning quality standards on VPDs. However, recognizing that the creation and delivery of quality closed captioning is not solely within the control of VPDs and that video programmers play a “critical role” in providing closed captions to viewers, the Commission stated that it would allow a VPD to satisfy its obligations with respect to the caption quality rules by obtaining or making best efforts to obtain certifications on captioning quality from its video programmers that such programmers are in compliance with the Commission's quality standards or related best practices. At the same time, as noted above, the Closed Captioning Further Notice sought comment on whether the Commission should revise its rules to allocate responsibilities for compliance with the television closed captioning obligations, including the obligation to provide quality captions, among various entities involved in the production and delivery of video programming. To this end, among other things, the Commission also sought comment on a specific proposal by Comcast/NBC Universal (Comcast) for a “burden-shifting enforcement model” that would place the initial burden of addressing captioning matters on VPDs, but then extend some captioning responsibilities to video programming owners (VPOs).

4. The Commission concludes that the obligations associated with compliance with the Commission's closed captioning quality rules shall be divided between VPDs and video programmers, making each entity responsible for closed captioning quality issues that are primarily within its control. It further concludes that the responsibilities associated with ensuring the provision of closed captions on television shall remain primarily with VPDs, but amends its rules to also hold video programmers responsible for ensuring the insertion of closed captions on all their nonexempt programming. The Commission also concludes that the video programmer certifications that video programmers must now make widely available to VPDs should instead be filed with the Commission.

5. Definitions of Video Programmers and Video Programming Owners. The Closed Captioning Quality Order defined a video programmer as “[a]ny entity that provides video programming that is intended for distribution to residential households including, but not limited to, broadcast or nonbroadcast television networks and the owners of such programming,” noting that such programmers are a subset of VPPs. The Closed Captioning Quality Further Notice also noted that the Commission has defined VPOs for purposes of requiring captions on video programming delivered via Internet protocol, in part, as “any person or entity that `[l]icenses the video programming to a video programming distributor or provider that makes the video programming available directly to the end user through a distribution method that uses Internet protocol.'” The Captioning Quality Further Notice sought comment on whether the definition of video programmer adopted in the Closed Captioning Quality Order is sufficiently broad in scope or whether the Commission should expand the definition to cover other categories of entities, and if so, which entities. The Commission also sought comment on whether and how the Commission should define VPOs with respect to the television closed captioning rules.

6. Document FCC 16-17 applies the definition of video programmer adopted in the Closed Captioning Quality Order without change. That definition does not exclude entities that provide programming for distribution to locations other than the home; rather it merely makes the intent to distribute to residential households a criterion of the definition. In other words, if an entity intends for its programming to be distributed to residential households, the entity will meet the definition of a “video programmer” and will be covered by the Commission's captioning rules, even if the video programmer's programming also reaches devices, such as tablets and other mobile devices that can be used outside the home.

7. Document FCC 16-17 defines VPO, for purposes of television captioning, as any person or entity that either (i) licenses video programming to a VPD or provider that is intended for distribution to residential households; or (ii) acts as the VPD or VPP, and also possesses the right to license video programming to a VPD or VPP that is intended for distribution to residential households. As is the case with video programmers, an entity will be considered a VPO if it licenses or possesses the right to license programming that is intended for distribution to residential households, even if the programming is also distributed to devices that are not located in the home. Accordingly, the captioning rules will cover video programming that is provided by such VPOs to VPPs and VPDs and distributed over VPD systems, even if the VPO's programming reaches devices, such as tablets and other mobile devices that may or may not be located in the home.

8. Commission Authority under Section 713 of the Act. The Commission reaffirms determinations, made in the 1997 Closed Captioning Report and Order and the Closed Captioning Quality Order, that the Commission has authority under section 713 of the Act to impose obligations for compliance with the Commission's closed captioning rules on both VPDs and video programmers. Section 713 of the Act authorizes the Commission to ensure the provision of closed captioning of video programming by providers and owners of video programming. Section 713(b)(2) of the Act directs the Commission to prescribe regulations that “shall ensure” that “video programming providers or owners maximize the accessibility of video programming first published or exhibited prior to the effective date of such regulations through the provision of closed captions.” Additionally, various subsections of section 713(d) authorize exemptions for both VPPs and program owners. The legislative history of section 713 of the Act further reflects Congress's intent to extend the Commission's authority over captioning of video programming to various entities involved in the production and delivery of video programming, including the distributors and owners of such programs, recognizing that “[i]t is clearly more efficient and economical to caption programming at the time of production and to distribute it with captions than to have each delivery system or local broadcaster caption the program.”. H.R. Rep. No. 104-204, 104th Cong., 1st Sess. (1995) at 114.

9. The Commission has long recognized its jurisdiction under section 713 of the Act to impose closed captioning obligations on both VPDs and video programmers. The Commission referenced its authority in the 1997 Closed Captioning Report and Order and the Closed Captioning Quality Order, and extended certain captioning responsibilities to VPOs in the IP Captioning Report and Order, which created requirements for captioned television programs to be displayed with captions when delivered via Internet protocol. Closed Captioning of Internet Protocol-Delivered Video Programming: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, published at 77 FR 19480, March 30, 2012 (IP Captioning Report and Order). There, the Commission concluded that placing obligations on VPOs would ensure that the Commission could hold a responsible party accountable for violations of the Twenty-First Century Communications and Video Accessibility Act (CVAA). Public Law 11-260, 124 Stat. 2751 (2010), technical corrections, Public Law 111-265, 124 Stat. 2795 (2010); IP Captioning Report and Order. Similarly, changes made to the Commission's requirements for the presentation of accessible emergency information on television added video programming providers, which includes program owners, as parties responsible (along with VPDs) for making such information accessible to individuals who are blind or visually impaired. The Commission ruled that the entity that creates the visual emergency information content and adds it to the programming stream is responsible for providing an aural representation of the information on a secondary audio stream, whether that entity is the VPD or VPP. In the Matter of Accessible Emergency Information, and Apparatus Requirements for Emergency Information and Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Report and Order and Further Notice of Proposed Rulemaking, published at 78 FR 31800, May 24, 2013 (2013 Emergency Information Order) (amending 47 CFR 79.2). Document FCC 16-17 reaffirms that section 713 of the Act gives the Commission jurisdiction to ensure the provision of closed captioning of video programming by both VPDs and video programmers.

10. Responsibilities for Ensuring Captioning Quality. The Commission concludes that it is appropriate to allocate responsibility for compliance with the closed captioning quality rules between VPDs and video programmers by placing responsibility on each entity for those aspects of closed captioning quality over which they primarily have control. The Commission reaches this conclusion because video programmers exert the most direct control over the creation of closed captions, and thus, as compared to VPDs, can exercise greater control over the non-technical quality components of closed captioning. At the same time, VPDs primarily have control over the technical aspects of captioning quality related to the pass-through and distribution of programming to end users.

11. There are a number of tasks associated with the provision of quality closed captions performed by video programmers. These entities “enter into contracts with captioning vendors, control when programming is delivered to captioning vendors to be captioned, and incorporate captioning with programming for delivery to VPDs.” See Closed Captioning Quality Order. The critical role that video programmers play in creating quality captioning justifies changing the allocation of responsibility for compliance with the caption quality requirements. The Commission thus affirms the finding made in the Closed Captioning Quality Order that “video programmers typically are the entities with the most direct control over the quality of closed captioning of their program.” It is for this reason that the Commission believes that assigning some responsibility for the quality of closed captioning directly to video programmers will more efficiently and effectively achieve compliance with the Commission's closed captioning quality requirements.

12. VPDs receive programs with the embedded captions supplied by video programmers, and while VPDs have an obligation to ensure that their technical equipment is capable of passing through program signals with captions in a manner that does not adversely affect the non-technical quality components (accuracy, synchronicity, completeness and placement), the record shows that video programmers are responsible in the first instance for making sure that captions meet these quality components—i.e., at the time when programmers initially arrange for the inclusion and insertion of such captions on their programs. Video programmers thus have primary control over ensuring that the non-technical quality standards are met. In addition, allocating captioning quality responsibilities between VPDs and video programmers will be more efficient and effective than attempting to reach video programmers indirectly through their contracts with VPDs. The Commission concludes that the responsibilities imposed by the contractual arrangements between these entities will not be as effective or efficient as direct responsibility on the part of video programmers to achieve compliance with the Commission's new closed captioning quality obligations.

13. First, the record shows that contractual arrangements between VPDs and video programmers may not be fully effective to ensure that video programmers will provide quality closed captions. Financial constraints and lack of influence may impede a VPD's ability to enforce agreements where violations of the captioning quality standards occur. Even in those instances in which a VPD is able to enforce its contractual agreement, the video programmer may decide to simply indemnify the VPD rather than correct the captioning quality problem.

14. The Commission concludes that having VPDs and video programmers share captioning quality responsibilities is likely to improve the efficacy of the complaint process because it will assign responsibility to the entity most able to effectively resolve the complaint. In addition, by allowing the Commission to take enforcement action against video programmers as well as VPDs, it will create incentives for both entities to take actions within their control to resolve quality problems swiftly and to the satisfaction of consumers. The record in this proceeding reveals that captioning quality problems can stem from the actions or inactions of either VPDs or video programmers. The new procedures adopted in this order for resolving captioning quality complaints consider this fact, and utilize the established relationship between VPDs and programmers, as well as VPDs and consumers, to simplify the resolution of complaints for consumers. In this regard, to the extent that a VPD is responsible for captioning problems, under a regulatory scheme of divided responsibility, the VPD will remain responsible for rectifying those problems. Likewise, video programmers will remain responsible for addressing captioning problems primarily within their control.

15. The Commission amends its rules to require video programmers to ensure that closed captioning data provided to VPDs complies with the Commission's closed captioning quality standards. The Commission will also continue to require VPDs to pass through programming with the original closed captioning data intact, in a format that can be recovered and displayed by consumers. Thus, under the new rules, video programmers will be responsible for closed captioning quality problems that stem from producing the captions, as well as transmission of the captions by the video programmers to the VPDs up to when the programming is handed off to the VPDs. VPDs will be responsible for closed captioning quality problems that are the result of faulty equipment or the failure to pass through closed captioning data intact. As a result, a VPD will be held responsible for a violation of the caption quality rules when the circumstances underlying the violation are primarily within the control of the VPD, and a video programmer will be held responsible for a violation of the caption quality rules when the circumstances underlying the violation are primarily within its control. Assigning liability in this manner will allow VPDs and video programmers to focus their resources on the captioning transmission processes over which they have the most control, thereby increasing their individual incentives to provide quality closed captions.

16. Responsibilities for the Provision of Captioning. Section 79.1(b) of the Commission's rules currently places on VPDs the responsibility for ensuring the provision of closed captions on non-exempt television programs. The Closed Captioning Quality Further Notice sought comment on whether the Commission should revise this rule to allocate some of this responsibility to other programming entities, such as video programmers.

17. The Commission concludes that the better approach for ensuring the provision of closed captions on television is to continue to hold VPDs primarily responsible for this obligation on the programming they carry, but to also hold video programmers responsible where they fail to provide captions on non-exempt programming. The Commission reaches this conclusion because it believes that its prior policy of placing sole responsibility on VPDs for the provision of closed captions on television programs failed to consider fully the significant role that video programmers play in the provision of captions on their video programming. Given that video programmers have control over the provision of closed captioning on programs they make available to VPDs for distribution to viewers, the Commission believes that it would be more effective and efficient to hold video programmers accountable for ensuring the insertion of closed captions on all of their programming that is not exempt, and the Commission amends § 79.1(b) of its rules to include the responsibilities of video programmers.

18. Yet, because the VPDs have an important role in the distribution of captioned programming, the Commission will maintain its current rules requiring VPDs to remain primarily responsible for ensuring the provision of closed captions on their programming, including the obligation to pass through programming with the original closed captioning data intact, in a format that can be recovered and displayed by consumers. The Commission believes that allocating responsibilities for the provision of closed captioning in this manner will incentivize entities with the greatest control over each aspect of the closed captioning carriage, transmission and delivery processes to provide closed captions. It also believes that the approach adopted herein will maintain the current incentives for VPDs to ensure that the programming they carry is in compliance with the Commission's rules, while allowing the Commission to reach video programmers in instances where such entities have been non-compliant. The Commission concludes that the ability to hold both video programmers and VPDs responsible for the carriage of closed captions will encourage both parties to work together and thereby ensure greater access to television programming for people who are deaf and hard of hearing.

19. The Commission further concludes that this approach will respond to requests by commenters to eliminate a potential “liability gap” in the Commission's captioning rules, that they claim has arisen by permitting VPDs to rely on certifications from programming suppliers to demonstrate compliance with the Commission's rules. Under the current rules, a VPD may rely on a certification from the programming supplier, even when “a programming source falsely certifies that the programming delivered to the distributor meets the Commission's captioning requirements if the distributor is unaware that the certification is false.” 47 CFR 79.1(g)(6). Moreover, because the current rules do not assign responsibility to video programmers, they are not held accountable even where a video programmer either fails to provide a certification, provides a false certification, or simply fails to provide the required captioning. The Commission's decision to hold VPDs primarily responsible for the provision of closed captioning while allocating some responsibility to video programmers will ensure that the responsible entities are held accountable when closed captioning is not provided and will better enable the Commission to fulfill Congress's intent to ensure the accessibility of video programming.

20. Video Programmer Certification. Because of the decision to allocate responsibility between video programmers and VPDs for the quality and provision of closed captioning, the Commission concludes that its rules governing these certifications should be amended to (1) make such certifications mandatory and (2) require video programmers to file these certifications with the Commission. At present, the Commission's rules provide for two separate types of video programmer certifications in the closed captioning context.

21. The first type of certification is under § 79.1(g)(6) of the Commission's rules, which provides that VPDs may rely upon certifications from programming suppliers, including programming producers, programming owners, network syndicators and other distributors, to demonstrate a program's compliance with the captioning provision rules. This section goes on to state that VPDs will “not be held responsible for situations where a program source falsely certifies that programming delivered to the distributor meets [the Commission's] captioning requirements if the distributor is unaware that the certification is false.” 47 CFR 79.1(g)(6). Under the Commission's current rules, there is no affirmative obligation on the part of VPDs to obtain such certifications or on programming suppliers to provide them. Additionally, the Commission's rules simply permit a VPD to rely on these certifications to prove that there was no underlying obligation to caption the programming received. This is the case even if the certification received is false (unless the VPD was aware of such falsehood).

22. The second type of programmer certification, which VPDs must make best efforts to obtain, was adopted by the Commission in the Closed Captioning Quality Order, and is contained in § 79.1(j)(1) of the Commission's rules. Under this rule, a VPD must exercise best efforts to obtain one of the following certifications from each video programmer with respect to the programming supplied to the VPD: (i) That the video programmer's programming satisfies the caption quality standards, see 47 CFR 79.1(j)(2) (stating the requirements with regard to captioning quality standards); (ii) that in the ordinary course of business, the video programmer has adopted and follows the Best Practices for video programmers with respect to captioning quality, see 47 CFR 79.1(k)(1) (stating the specific requirements with regard to Best Practices); or (iii) that the video programmer is exempt from the closed captioning rules, under one or more properly attained exemptions. If a video programmer claims an exemption from the captioning rules, it must also specify the exact exemption. 47 CFR 79.1(j)(1). In addition, § 79.1(k)(1)(iv) of the Commission's rules requires a video programmer that adopts Best Practices to certify to its VPDs that it has adopted and is following Best Practices for video programmers with respect to quality. Section 79.1(j)(1) and (k)(1)(iv) of the Commission's rules requires that the video programmer make this certification widely available, with § 79.1(j)(1) of the Commission's rules requiring that the video programmer do so within 30 days after receiving a written request to do so from a VPD.

23. In the Closed Captioning Quality Second Further Notice the Commission sought comment on the need to alter its video programmer certification requirements if it extends some responsibilities for compliance with its closed captioning rules to video programmers. Specifically, the Commission asked whether it should amend § 79.1(j)(1) of its rules to require video programmers to file their certifications on caption quality with the Commission (rather than making such certifications widely available through other means) and whether it should amend § 79.1(k)(1)(iv) of its rules to make the filing of certifications with the Commission part of video programmers' Best Practices. The Commission also sought comment on whether it should amend § 79.1(g)(6) of its rules to require video programmers to file certifications with the Commission that they are in compliance with the Commission's rules for the provision of closed captioning.

24. The Commission concluded that changing the certification processes to require video programmers to provide certifications to the Commission of their compliance with the Commission's rules regarding the provision and quality of closed captions is necessary to effectively implement the new apportionment of the closed captioning obligations. To better ensure compliance with the rules and simplify the certification process, the Commission revises its certification processes to collapse the certification requirements contained in § 79.1(g)(6), (j)(1), and (k)(1)(iv) of its rules into a single rule that, with respect to non-exempt programming, makes mandatory the obligation for each video programmer to submit to the Commission a certification that its programming (1) is in compliance with the obligation to provide closed captioning and (2) either complies with the captioning quality standards or adheres to the Best Practices for video programmers with respect to captioning quality. In the event that some or all of the programming in question is exempt under one or more of the exemptions set forth in the Commission's rules, in lieu of the above certification, the video programmer must submit a certification attesting to such exemption and specifying each category of exemption that is claimed. The Commission now requires video programmers to file their certifications with the Commission when they first launch and on an annual basis, on or before July 1 of each year, and to use the Commission's web form filing system for such submissions.

25. By amending the Commission's rules to make certification as to the provision and quality of closed captions by video programmers mandatory, the Commission will hold video programmers accountable for their certifications, e.g., where a submitted certification is false or a programmer fails to provide the requisite certifications. A video programmer's failure to submit a certification or submission of a false certification will be deemed a violation of the Commission's rules that is separate from any violations related to the failure to provide quality captions.

26. The Commission concludes that requiring video programmers to file their certifications with the Commission, rather than with VPDs (as currently required), also will create greater efficiencies because it will create a single repository for all video programmer certifications, providing greater transparency and ease of reference for video programmers, consumers and VPDs. Moreover, this approach eliminates the need to rely on VPDs to obtain certifications from video programmers, and for VPDs to undertake the task of locating and collecting such certifications.

27. Because VPDs will remain primarily responsible for the provision of closed captioning on the non-exempt programming that they carry, certifications from video programmers will be necessary to inform VPDs of the extent to which the programming that they carry contained closed captions upon receipt. VPDs can then rely on these certifications to prove compliance, so long as they do not know or do not have reason to know a certification is false and so long as the VPDs pass through such captions intact to viewers. Requiring video programmers to provide certifications regarding their compliance with the closed captioning quality standards or Best Practices will help bring to their attention their new responsibilities, and thereby help to ensure quality closed captions. The process of having to prepare and provide the certification will help alert video programmers of the need to comply with the captioning quality standards or Best Practices.

28. Compared to the prior certification procedures, the new certification regime (which imposes direct responsibilities on video programmers as well as VPDs) will enhance the Commission's ability to enforce the captioning rules against video programmers and VPDs, and thus ensure the needs of consumers are better served. First, because video programmers were not obligated to provide certifications under the Commission's prior rules (i.e., 47 CFR 79.1(g)(6), (j)(1), and (k)(1)(iv)), the Commission had limited enforcement ability against noncompliant video programmers. Second, some VPDs may be unable to negotiate contractual arrangements obligating video programmers to provide such certifications, due to disparities in negotiating power. Finally, because many video programmers already provide certifications to VPDs under § 79.1(g)(6) and (j)(1) of the Commission's rules, combining these certifications into a single certification to be filed with the Commission should not result in any significant additional burden. Moreover, even if this requirement were to create an added burden on video programmers who are not already providing certifications under the Commission's current rules, the rules the Commission now adopts minimize such burden by only requiring these certifications to be filed annually, on or before July 1 of each year, rather than every time there is a change in programming. In addition, any such burden will be outweighed by the benefits of requiring video programmers to provide certifications, as described in the preceding paragraphs.

29. VPD Obligations with Respect to Video Programmer Certifications. The Closed Captioning Quality Second Further Notice sought comment on VPDs' obligations pertaining to such certifications, and, specifically, whether to require each VPD to alert its video programmers of the requirement to provide certifications to the Commission, to verify video programmers' compliance with the certification requirement, and to thereafter report to the Commission any failure by a video programmer to comply.

30. Because the rules now adopted by the Commission will hold video programmers directly liable for their failure to provide the required certifications, it is not necessary to make VPDs responsible for informing video programmers about the need to provide certifications, or to require that VPDs check on and report noncompliant video programmers to the Commission. At the same time, VPDs should be allowed to rely upon the certifications from video programmers to fulfill their obligation to ensure the provision of closed captions on the programming they carry. Accordingly, the Commission will allow a VPD to demonstrate compliance with its captioning obligations where it relies on a programmer's certification as to the presence of captions on such programming or that such programming is exempt from the captioning requirements, so long as (1) the VPD passes through the closed captions intact to viewers; and (2) the VPD did not know or did not have reason to know that such certification was false. However, if a VPD carries non-exempt programming without captions from a video programmer that has not provided certification to the Commission, or from a video programmer that has provided a certification that the VPD knew or had reason to know was false, the VPD will be liable for failing to have provided closed captions on such programming, even if the lack of captions was not due to the VPD's failure to pass through closed captions intact. This will discourage the VPD from ignoring information that should warrant checking into the veracity of the certification, such as the VPD finding the absence of captioning on programming, and hold the VPD accountable for the failure to provide closed captioning on programming that it knows or has reason to know is not exempt from the Commission's rules.

31. These new rules will reduce burdens resulting from compliance with the Commission's captioning quality rules on VPDs. At present, VPDs must search video programmer Web sites and other locations to find the video programmers' “widely available” certifications. The Consumer and Governmental Affairs Bureau's (CGB's) recent experience in verifying the availability of some of these certifications suggest that in some cases these searches have been difficult and have not yielded certifications that video programmers had placed on their Web sites. The new rules will enable VPDs to be able to easily find these certifications on the Commission's Web site.

32. Complaint Handling. The Commission's decision in this order to allocate captioning responsibilities between VPDs and video programmers necessitates the establishment of an orderly process for the handling of complaints by each covered entity in order to prevent duplication of efforts, avoid potential confusion about responsibilities, and achieve overall efficiency to ensure the timely resolution of captioning complaints. The Commission concludes that a burden-shifting approach is appropriate for the handling of these complaints.

33. Under the burden-shifting approach, upon receiving a complaint about the quality of captions, a VPD would have the initial burden of conducting an investigation into the source of the problem. The VPD would address the complaint if able to do so, but the burden of addressing the complaint would shift to the video programmer if the VPD learned, after its initial investigation, that the problems raised were not within its control. The Commission believes that this approach appropriately builds on existing video programmer and VPD practices, by which VPDs investigate complaints, determine whether their equipment is causing the problem, and confer with video programmers to identify and resolve closed captioning problems under the video programmers' control. This model can also ensure that the entity most able to remedy the captioning issue will have the responsibility to fix the problem, and the Commission therefore expects that this approach will expedite complaint resolution and result in more effective results for viewers who rely on captions to follow a program's content.

34. The Commission further concludes that it is best to apply the same burden-shifting approach to all types of captioning complaints—rather than apply this approach only to complaints on captioning quality. Employing different processes in the handling of different types of complaints would require the Commission and covered entities to try to predict the source of each complaint's underlying issues before directing the complaint through the appropriate process. This would be difficult given that some complaints may raise both non-technical and technical problems, and ascertaining the underlying causes for such problems often becomes possible only after an investigation into those causes. As a result, attempts to predict the underlying problem at the outset might result in the complaint being referred to the wrong entity and thereby delay its resolution. Accordingly, a uniform complaint and enforcement model for all closed captioning issues on television programming will streamline the rules and clarify all parties' obligations. Under this approach, the video programmer and the VPD will each be responsible for resolving complaints that are the result of problems primarily within each entity's respective control.

35. At present, the Commission's television closed captioning rules allow consumers to file captioning complaints with either the Commission or with the VPD responsible for the delivery and exhibition of video programming at issue, within sixty days after the consumer experiences a captioning problem. 47 CFR 79.1(g)(1). Because of the existing relationship that VPDs have with their subscribers, the approach provides a single point of contact for consumers and allows utilization of the existing VPD infrastructure for receiving, processing, and resolving closed captioning complaints. Allowing consumers to file complaints with either the VPD or the Commission eliminates the need for consumers to identify the video programmer with whom consumers generally have no direct relationship. It also eliminates the need for consumers to figure out the party responsible for the problem they are experiencing—for example, whether it was a pass through problem caused by the VPD or a non-technical quality problem caused by the video programmer. Accordingly, the captioning complaint process that the Commission adopts will continue to allow consumers to file closed captioning complaints either with the Commission or with the VPD. If the complainant chooses to file with the VPD, but fails to receive a timely response or is not satisfied with that response, the consumer may subsequently file his or her complaint with the Commission.

36. Complaints Filed with the Commission—Complaint Content. In the Closed Captioning Quality Order, the Commission adopted a rule requiring the following information to be provided in an informal complaint regarding captioning quality as a prerequisite to the Commission forwarding such complaint to a VPD: (1) The channel number; (2) the channel name, network, or call sign; (3) the name of the multichannel video programming distributor (MVPD), if applicable; (4) the date and time that the captioning problem occurred; (5) the name of the program involved; and (6) a detailed description of the problem. 47 CFR 79.1(j)(4). The Commission explained that this information is necessary to enable a programming entity to investigate and resolve the complaint. Because the same rationale applies to all closed captioning complaints, whether or not related to closed captioning quality, the Commission extends the requirement to provide this information to all television closed captioning complaints. The Commission directs CGB to provide assistance to consumers who may experience difficulties gathering any of this required information. It further clarifies that all complaints should contain the consumer's identifying information, including the consumer's name, postal address, and other contact information, if available, such as telephone number or email address, along with the consumer's preferred format or method of response to the complaint (such as letter, facsimile transmission, telephone (voice/TRS/TTY), email, or some other method that would best accommodate the consumer).

37. Complaints Filed with the Commission—Complaint Procedures. Under the burden-shifting approach that the Commission adopts, when the Commission receives a closed captioning complaint, it will serve the complaint on the named VPD and the appropriate video programmer simultaneously. If the Commission cannot determine the appropriate video programmer to serve, it will forward the complaint to the VPD and will inform the VPD that the Commission has been unable to determine the appropriate video programmer. Within ten days after the date of such notification, the VPD must respond to the Commission with the name and contact information for the appropriate video programmer, after which the Commission will forward the complaint to the video programmer as well.

38. After being served with a consumer complaint, the VPD must conduct an initial investigation to determine whether the matters raised in the complaint are primarily within its control. Concurrently, the video programmer may voluntarily begin its own inquiry into the source of the captioning problem, but the video programmer is not required to take any action at that time. Forwarding the complaint to both the VPD and video programmer at the outset will help facilitate the swift resolution of complaints because it will allow the video programmer, if it so chooses, to take its own steps toward a resolution while the VPD investigates matters primarily under its control.

39. VPDs will be given flexibility in conducting their initial investigations, in order to allow for differences in equipment and processes among VPDs; however, VPDs will be required to exercise due diligence in their efforts to identify the source of the issue and resolve all matters primarily within their control before shifting responsibility for addressing these matters to their video programmers. To meet this standard and to ensure a thorough investigation into closed captioning problems raised in complaints, the Commission will require VPDs, at a minimum, to take the following actions as part of their investigations: (1) Program Stream Check: Capture program streams of the programming network identified in the complaint and check the streams for any caption-related impairments that may have caused the reported problem and to prevent ongoing problems; (2) Processing Equipment Check: If there is an issue with the program stream, and there is not prior knowledge as to where the problem originated, check post-processing equipment at the relevant headend or other video distribution facility to determine whether the issue was introduced at the VPD level or was present in the stream when received by the VPD from the video programmer; (3) Consumer Premises Check: If the VPD's investigation indicates that the problem may lie with the consumer's customer premises equipment, including the set-top box, check the end user equipment, either remotely, or, if necessary, at the consumer's premises, to ensure there are no issues that might interfere with the pass through, rendering or display of closed captioning. The Commission will defer to the VPD's good faith judgment about whether there is an indication that the problem might lie with the consumer's customer premises equipment and whether it is necessary to go to the consumer's premises to check the equipment. However, in the event of a dispute or an enforcement proceeding, the VPD will have the burden of proving that it conducted a thorough investigation into the closed captioning problems raised in the complaint. Requiring VPDs to take these steps will ensure that a full and effective investigation occurs prior to shifting the complaint handling responsibilities to video programmers. This also is more likely to result in a speedier and efficient resolution of the problems raised in complaints, thereby helping to fulfill Congress's goal to make television programming fully accessible to people who are deaf and hard of hearing.

40. If the VPD's investigation reveals that the closed captioning problem is within the control of the VPD, the VPD must correct the problem and provide a written response to the Commission, the video programmer and the consumer acknowledging such responsibility and describing the steps taken to correct the problem. A complaint must be resolved, and a written response sent, within 30 days after the date the Commission forwards the complaint to the VPD. As required by the Commission's current rules, the VPD's response must provide the Commission with sufficient evidence, including records and documentation, to demonstrate that the VPD is in compliance with the Commission's closed captioning rules. 47 CFR 79.1(g)(5). In this case, no burden-shifting to the video programmer will occur, and the VPD will retain liability for the problem.

41. If the VPD's investigation reveals that the closed captioning problems raised in the complaint are not primarily within the VPD's control and appear to have been present in the program stream when received by the VPD, the burden for addressing the complaint will shift to the video programmer. To shift the burden, the VPD must certify to the Commission, the video programmer, and the consumer that it has exercised due diligence to identify and resolve the source of the captioning problem by conducting an investigation on the closed captioning complaint in accordance with the Commission's rules, and that the problems raised in the complaint are not within its control. In addition, if at any time during the complaint resolution process, the VPD's investigation reveals that the closed captioning problems raised in the complaint were the result of causes not within the VPD's control and also do not appear to be within the video programmer's control, such as a faulty third-party DVR, television, or other third-party device, the VPD must certify to the Commission, the video programmer, and the consumer that it has exercised due diligence to identify and resolve the source of the captioning problem by conducting an investigation on the closed captioning complaint in accordance with the Commission's rules, and that the problems raised in the complaint were caused by a third party device or other causes that appear not to be within the control of either the VPD or the video programmer. The applicable certification may be provided at any time during the VPD's investigation, but no later than 30 days after the date the Commission forwarded the complaint. The requirement for such certification is intended to alleviate concerns that VPDs might perform cursory investigations or inappropriately shift the burden of resolving complaints to video programmers in order to avoid fulfilling their captioning obligations. A VPD that fails to provide a certification or provides an untruthful certification may be subject to immediate enforcement action without first being subject to the compliance ladder. In addition, any video programmer may report to the Commission when, after receiving a certification from a VPD, the video programmer determines that the VPD did not follow all of the steps required by the Commission's rules for investigating a complaint or that the problem described in a complaint is in fact within the VPD's control.

42. After the responsibility for resolving the complaint shifts to the video programmer, the video programmer must investigate and attempt to resolve the closed captioning problem to the extent that doing so is within the video programmer's control. After the responsibility for resolving the complaint shifts to the video programmer, the video programmer will have the burden of proving that the video programmer conducted a thorough investigation into the closed captioning problems raised in the complaint. In addition, while, at this point in the complaint resolution process, the video programmer will take on the primary responsibility for resolving the closed captioning problem, the Commission will require the VPD to continue to assist the video programmer with resolving the complaint, as needed. Requiring the VPD to remain involved throughout the complaint process will foster collaboration between VPDs and video programmers, and increase the likelihood that the complaint will be swiftly resolved to the satisfaction of the consumer and the Commission.

43. Within 30 days after the date of certification from the VPD, the video programmer must provide a written response to the complaint that either describes the steps taken to rectify the problem or certifies that its investigation revealed that it has exercised due diligence to identify and resolve the source of the captioning problem by conducting an investigation on the closed captioning complaint in accordance with the Commission's rules, and that the problems raised in the complaint are not within its control. Such response must be submitted to the Commission, the VPD, and the consumer, and must provide the Commission with sufficient records and documentation to demonstrate that the video programmer is in compliance with the Commission's rules. See 47 CFR 79.1(g)(5). Requiring video programmers to respond within 30 days will ensure that video programmers promptly investigate complaints. If the video programmer reports that it has rectified the problem, this will enable the VPD to conduct additional checks of the program stream if needed to confirm the complaint's resolution, and keep the VPD, the Commission, and the consumer informed so the VPD can know when to close the complaint file.

44. If the video programmer certifies that the program stream contained fully functioning captioning at the time the program stream was handed off to the VPD, and the VPD has not determined that the problem resulted from a third party source, the VPD and the video programmer must then work together to determine the source of the captioning problem. Once the source of the problem is determined, the VPD and video programmer shall each be required to correct those aspects of the problem within its control. The VPD is then required, after consultation with the video programmer, to report to the Commission and the complainant the steps taken to fix the captioning problem. The VPD must submit such information in writing within 30 days after the date that the video programmer certified that the cause of the problem was not within the video programmer's control. Further, the Commission may, during its review of a complaint or the pendency of an enforcement proceeding, request the VPD and the video programmer to provide sufficient documentation to demonstrate compliance with the Commission's rules. Accordingly, VPDs will remain responsible for resolving problems that are within their control, which will help prevent the wasteful duplication of efforts to resolve complaints.

45. Complaints Filed with the VPD. Document FCC 16-17 preserves the consumers' long-standing option of filing their captioning complaints directly with their VPDs. See 47 CFR 79.1(g)(1) and (4). When a VPD receives a complaint from a consumer, the VPD should investigate the complaint with the same due diligence and in the same manner as required for complaints initially filed with the Commission and later served on VPDs, with a goal of initially determining whether the matter raised in the complaint is within the control of the VPD. If, after conducting its initial investigation, the VPD determines that the issue of the complaint is within its control, it shall take the necessary measures to resolve it, and notify the consumer of such resolution within 30 days after the date of the complaint. If (1) the consumer does not receive a response to the complaint within the 30-day period, or (2) the consumer is not satisfied with the VPD's response, the consumer may file the complaint with the Commission within sixty days after the time allotted for the VPD to respond to the consumer. The Commission believes that VPDs will have sufficient incentives to thoroughly investigate and promptly resolve the complaints that they receive directly from consumers, to reduce the need for such consumers to re-file their complaints with the Commission.

46. In the event that the VPD determines that the issues raised in the complaint are not within its responsibilities, § 79.1(g)(3) of the Commission's rules as currently written requires the VPD to forward the complaint to the responsible programming entity. 47 CFR 79.1(g)(3). The Commission resolves a conflict between § 79.1(g)(3) of its rules and statutory provisions prohibiting the VPD from disclosing a consumer's personally identifiable information (PII) without the consumer's consent. See 47 CFR 79.1 (g)(3), 47 U.S.C. 551(c)(1), and 47 U.S.C. 338(i)(4)(A). The Commission will require that if a VPD determines that an issue raised in the complaint is not primarily within the VPD's control, the VPD, within 30 days after the date of the complaint, must either forward the complaint to the video programmer or other responsible entity, such as another VPD, with the consumer's PII—including the consumer's name, contact information, and other identifying information—redacted, or provide the video programmer or other responsible entity with information contained in the complaint sufficient to achieve its investigation and resolution. Such information should include the same type of information necessary for a complaint to be forwarded to a VPD when it is submitted to the Commission—i.e., (1) the channel number; (2) the channel name, network, or call sign; (3) the name of the multichannel video programming distributor (MVPD), if applicable; (4) the date and time that the captioning problem occurred; (5) the name of the program involved; and (6) a detailed description of the problem—to the extent the VPD is in possession of such information. In addition, the VPD must provide the video programmer or other responsible entity with an explanation of why the cause of the captioning problem is not primarily within the control of the VPD. The Commission expects that requiring a VPD to forward the complaint with the consumer's PII redacted or to forward a description of the complaint's material details will resolve the outstanding regulatory conflict without the need for back-and-forth communications between the VPD and the consumer that otherwise might have been needed for resolution of the complaint.

47. When forwarding the complaint or a description of the complaint, the VPD must also assign a unique identifying number (“complaint ID number”) to the complaint, and transmit that number to the video programmer or other responsible entity along with the complaint or a description of the complaint. The Commission further requires the VPD to inform the consumer that the complaint has been forwarded, along with the complaint ID number and the name and contact information of the video programmer or other responsible entity to whom the complaint was forwarded, at the same time that the complaint is forwarded to the video programmer or other responsible entity. Providing information to consumers about the status of their complaints will enhance the transparency of the complaint resolution process, and avoid the situation in which a VPD responds to a complaint by shifting blame for a captioning problem to another entity while refusing to identify such entity publicly. Additionally, providing consumers with both the complaint ID number and the video programmer's or other responsible entity's contact information will enable the consumer to contact a video programmer or other responsible entity directly and inquire about the status of his or her complaint if so desired. The VPD must also explain to the consumer that if the consumer wishes to follow up with the video programmer, the consumer will need to provide the video programmer with the name of the VPD as well as the complaint identification number.

48. Once a video programmer or other responsible entity receives a complaint and notification from a VPD that the issue described in the complaint is outside the VPD's control, the burden will shift to the video programmer or other responsible entity to investigate and resolve the complaint. However, as for complaints initially filed with the Commission, the Commission will require the VPD to continue to assist the video programmer or other responsible entity in resolving the complaint as needed and to conduct additional checks of the program stream to confirm resolution of the problem, upon notification from the video programmer or other responsible entity that the problem has been resolved.

49. The video programmer or other responsible entity must respond in writing to the VPD within 30 days after the forwarding date of the complaint from the VPD, in a form that can be forwarded to the consumer. The VPD must then forward this response to the consumer within ten days after the date of the video programmer's or other responsible entity's response. If the video programmer or other responsible entity fails to respond to the VPD within 30 days after the forwarding date of the complaint from the VPD, the VPD must inform the consumer of the video programmer's or other responsible entity's failure to respond within 40 days after that forwarding date.

50. If the video programmer or other responsible entity fails to respond to the VPD within the time allotted, or if the VPD fails to forward the video programmer's or other responsible entity's response to the consumer, or if the consumer is not satisfied with that response, the consumer may file the complaint with the Commission within sixty days after the time allotted for the VPD to either forward the video programmer's or other responsible entity's response to the consumer or inform the consumer of the video programmer's or other responsible entity's failure to respond. Upon receipt of the complaint from the consumer, the Commission will forward such complaints to the appropriate VPD and video programmer, and the VPD and video programmer shall handle such complaints, as governed by the rules applicable to complaints filed with the Commission.

51. The Commission requires the VPD to remain involved in the resolution of complaints that are not within the VPDs' control because the VPD is the entity with which a complainant has a direct commercial relationship, and thus the VPD should remain the primary point of contact for the complainant even when the complaint is forwarded to the video programmer. Unlike video programmers, VPDs are the last link in the distribution chain and either receive direct payment from consumers for services rendered or provide programming over the public airwaves. Having VPDs forward responses from video programmers or other responsible entities to consumers will create a seamless process for consumers, allowing them to receive a response from the business entity with which they are familiar, and with which they initially filed their complaint. Also, as a practical matter, because the Commission requires the VPD to redact the consumer's PII, including the consumer's name and address, when forwarding a complaint to a video programmer or other responsible entity, the video programmer or other responsible entity will not have the necessary contact information to respond directly to the consumer. Finally, the Commission is imposing timelines on (1) the forwarding of complaints by VPDs, (2) the response by the video programmer or other responsible entity to the VPD, and (3) the forwarding of the response by the VPD to the consumer. The Commission therefore concludes that assigning to the VPD the responsibility of reporting the resolution to the consumer should not delay the provision of such notification.

52. In the event that the video programmer, other responsible entity, or VPD fails to meet any deadlines for responses to the consumer's complaint or if such responses do not satisfy the consumer, the consumer may file the complaint with the Commission within 60 days after the time allotted either for the VPD to respond to the consumer or for the VPD to forward the video programmer's or other responsible entity's response to the consumer, whichever is applicable. If a consumer re-files the complaint with the Commission after initially filing the complaint with the VPD, the Commission will forward the complaint to the appropriate VPD and the video programmer, and each such entity must follow the complaint handling processes for complaints filed with the Commission as outlined above.

53. Compliance Ladder. In the Closed Captioning Quality Order, the Commission adopted a “compliance ladder” that allows broadcast stations to take corrective actions to demonstrate compliance with new enhanced electronic newsroom technique (ENT) procedures prior to being subject to enforcement action. The Commission reasoned that this approach would provide these entities with “ample opportunities to improve their captioning, especially if their current practices are deficient.” Closed Captioning Quality Order. In the Closed Captioning Quality Further Notice, the Commission sought comment on whether to similarly allow VPDs and video programmers to assert a safe harbor to demonstrate compliance through corrective actions prior to being subject to enforcement action, in the event certain obligations for compliance with the captioning quality standards are placed on each of these entities.

54. In document FCC 16-17, the Commission adopts a compliance ladder for the captioning quality rules, including rules addressing quality issues related to the pass-through of captions, which is similar to the ladder adopted for the enhanced ENT rules. It will not apply this compliance ladder to other captioning requirements, including the provision of captioning, equipment monitoring and maintenance, registration and certification. Rather, the Commission concludes that its current practice of addressing the latter types of concerns through the informal complaint process, while retaining the option to refer such matters for enforcement action as appropriate, has been effective in achieving resolution of these concerns.

55. The Commission will continue to entertain individual informal complaints of noncompliance with the Commission's closed captioning quality rules in accordance with the complaint procedures outlined in document FCC 16-17. However, for captioning quality complaints received by the Commission that indicate a pattern or trend of noncompliance with its captioning quality rules, the Commission adopts a compliance ladder that is similar to that used for addressing noncompliance with its rules governing the enhanced ENT procedures. By focusing on patterns or trends rather than individual reports of closed captioning quality problems, use of this compliance mechanism will afford VPDs and video programmers opportunities to correct such problems without Commission enforcement action. In this manner, a compliance ladder will enable parties to more quickly address and remedy problems without worrying that in so doing they may be subject to fines or forfeitures.

56. Accordingly, the Commission adopts the following compliance ladder to be applied when consumer complaints received by the Commission indicate a pattern or trend of noncompliance with the Commission's rules governing the quality of television closed captioning on the part of either the VPD or the video programmer. The Commission will apply a broad definition of “pattern or trend” when determining whether the compliance ladder is triggered. For example, a “pattern or trend” may be found when a particular entity is subject to a series of complaints over time about caption quality problems or failures or where a particular entity is subject to a large volume of complaints that suggests widespread quality problems or failures, even if they occur over a relatively short span of time. A pattern or trend of consumer complaints, even if about different programs or different types of captioning failures by the same entity, may reflect a system breakdown in that entity's processes sufficient to trigger this approach. In other words, the Commission may discern a pattern or trend in a series of complaints about the same or similar problems or in a multiplicity of complaints about unrelated problems.

• If the Commission notifies a VPD or video programmer that the Commission has identified a pattern or trend of possible noncompliance with the Commission's rules governing the quality of closed captioning by the VPD or video programmer, the VPD or video programmer shall respond to the Commission within 30 days after the date of such notice regarding such possible noncompliance, describing corrective measures taken, including those measures the VPD or video programmer may have undertaken in response to informal complaints and inquiries from viewers. Multiple complaints about a single incident are not considered a pattern or trend.

• If, after the date for a VPD or video programmer to respond to the above notification, the Commission subsequently notifies the VPD or video programmer that there is further evidence indicating a pattern or trend of noncompliance with the Commission's rules governing the quality of closed captioning, the VPD or video programmer shall submit to the Commission, within 30 days after the date of such subsequent notification, a written action plan describing additional measures it will take to bring the VPD's or video programmer's closed captioning performance into compliance with the Commission's regulations. For example, action plans involve the identification and implementation of longer term measures and may include, but are not limited to, a commitment to train the VPD's or video programmer's personnel, the use of improved equipment, more frequent equipment checks, improved monitoring efforts, and changes in closed captioning vendors or closed captioning procedures. In addition, the VPD or video programmer shall be required to conduct spot checks of its closed captioning performance and report to CGB on the results of such action plan and spot checks 180 days after submission of such action plan.

• If, after the date for submission of the report on the results of an action plan, the Commission finds continued evidence of a pattern or trend of noncompliance with the Commission's rules governing the quality of closed captioning, the Commission will then consider, through its Enforcement Bureau, appropriate enforcement action, including admonishments, forfeitures, and other corrective actions as necessary.

57. The Commission believes that this three-step ladder will provide VPDs and video programmers with the necessary incentives to take corrective action on their own. In particular, the Commission believes that the first step of the compliance ladder, once a pattern or trend of noncompliance is identified, should afford an opportunity for VPDs and video programmers to rectify captioning quality violations on their own and quickly, without the regulatory involvement that would be associated with the second step's required action plan or the third step's enforcement action. However, if the Commission finds that this approach is not effective in ensuring widespread compliance with its television closed captioning quality rules or fulfilling its goal of ensuring full access to television programming as required by section 713(b) of the Act, it may revisit this issue to the extent necessary.

58. The Commission emphasizes that the compliance ladder will not relieve VPDs or video programmers of any of their obligations under the television closed captioning rules. However, to address this concern, the Commission adopts an additional rule allowing CGB to refer a captioning quality rule violation directly to the Enforcement Bureau for enforcement action, or for the Enforcement Bureau to pursue an enforcement action on its own, without first going through the compliance ladder, for a systemic closed captioning quality problem or an intentional and deliberate violation of the Commission's closed captioning quality standards. In making such a determination, CGB or the Enforcement Bureau shall take into consideration all relevant information regarding the nature of the violation or violations and the VPD or video programmer's efforts to correct them.

59. VPD Registration. In the 2008 Closed Captioning Decision, the Commission amended its rules to add § 79.1(i)(3), which requires VPDs to submit contact information for the receipt and handling of both immediate requests to resolve captioning concerns by consumers while they are watching television and closed captioning complaints that consumers file after experiencing closed captioning issues. The 2008 Order explained that VPDs could satisfy this requirement by either filing a hard copy or sending an email. 2008 Closed Captioning Decision. In 2009, the Commission added an option to allow VPDs to file their contact information directly online via a web form located on the Commission's Web site, in a database called the “VPD Registry.” Closed Captioning of Video Programming, Order, published at 75 FR 7368, February 19, 2010. Recognizing in the Closed Captioning Quality Further Notice that such electronic filings into the VPD Registry would offer the most efficient and accurate means of collecting the requisite information, the Commission sought comment on a proposal to require all contact information required by § 79.1(i)(1) and (2) of its rules be submitted directly to the VPD Registry through the web form method. Closed Captioning Quality Further Notice.

60. The Commission finds that requiring VPDs to submit their contact information into the VPD Registry through the web form would also be consistent with the 2011 Electronic Filing Report and Order, which adopted a policy to require the use of electronic filing whenever technically feasible. See Amendment of Certain of the Commission's Part 1 Rules of Practice and Procedure and Part 0 Rules of Commission Organization, Report and Order, published at 76 FR 24383, May 2, 2011. In light of such technical feasibility, as well as the accuracy and efficiency of this electronic filing method, the Commission amends § 79.1(i)(3) of its rules to require VPDs to submit their contact information required under § 79.1(i)(1) and (2) of its rules directly into the Commission's database through the web form method and to remove as options the alternate methods of submitting this information to the Commission.

61. Video Programmer Registration. In document FCC 16-17, the Commission requires that video programmers file their contact information through a web form located on the Commission's Web site for the handling of written closed captioning complaints by the Commission and by VPDs, and as required for VPDs, to update such information within ten business days of any changes. The video programmer contact information shall include the name of the person with primary responsibility for captioning issues and who can ensure compliance with the captioning rules, and the person's title or office, telephone number, fax number (if there is one), postal mailing address, and email address. The Commission also directs video programmers to submit their required compliance certifications through a web form located on the Commission's Web site, so that such certifications will be readily available to consumers, VPDs, and the Commission. The Commission directs CGB to implement the development of one or more web forms (or to expand the existing VPD Registry) for the filing of video programmer contact information and certifications and to provide guidance to programming entities and the general public on the appropriate use of video programmer contact information found on the Commission's Web site. The Commission also directs CGB to issue a Public Notice to provide such guidance as well as procedures and deadlines for video programmers to file contact information and certifications once the rules go into effect and the Commission's Web site is ready to receive such contact information and certifications.

62. The Commission concludes that it is important for video programmers to register their contact information with the Commission so that it is readily available to the Commission and to VPDs for the expedient and effective handling and resolution of complaints. In particular, for complaints filed directly with a VPD, under the new complaint handling rules, the VPD must have ready access to video programmer contact information so that the VPD can forward the complaint information to the correct video programmer when the VPD ascertains that the source of problem raised in a complaint originated with that programmer. If this information is not available to VPDs, and especially smaller VPDs, such entities may encounter challenges and delays in their efforts to resolve complaints. The filing of video programmer contact information will eliminate such challenges by enabling VPDs to obtain current contact information from a centralized location.

63. Additionally, requiring video programmers to file their contact information with the Commission will help to expedite the resolution of complaints filed directly with the Commission. Because the complaint handling rules that the Commission adopts in this Order require the Commission to forward written complaints to both VPDs and their video programmers, the Commission needs access to video programmer contact information. The Commission also finds that the public availability of video programmers' contact information will increase transparency, aid the complaint process, and thereby facilitate high-quality captioning. For example, the complaint handling rules adopted in document FCC 16-17 require each VPD to inform a consumer when it has forwarded his or her complaint to a video programmer for resolution. If the consumer wishes to contact the video programmer directly regarding his or her complaint after it has been forwarded by the VPD, the Commission's Web site will provide the consumer with the necessary video programmer's contact information to do so.

64. The Commission emphasizes that its actions taken herein are not intended to remove VPDs from the process of resolving consumer complaints. VPDs may be in the best position to take primary responsibility for complaint resolution given the more direct relationship they have with viewers and subscribers, the opportunity for consumers to utilize existing VPD processes for receiving, processing, and resolving closed captioning complaints, and the ability of VPDs to provide a single point of contact for consumers. The Commission's new requirement for video programmers to file contact information with the Commission is intended primarily for use by VPDs and Commission staff for complaint resolution and enforcement purposes, and to facilitate transparency for the public when VPDs forward complaints to programmers for resolution. The Commission encourages consumers to continue filing complaints about captioning with the Commission or VPDs in the interest of achieving faster resolution of their captioning concerns.

65. Finally, the Commission does not think it is necessary, at this time, to require video programmers to make their contact information available on their Web sites or through other means in addition to filing this information in the Commission's database. The Commission finds that its requirement for video programmers to file contact information with the Commission is sufficient to serve its regulatory purposes of making such information available for use primarily by VPDs and Commission staff for complaint resolution and enforcement purposes, and to facilitate transparency for the public when VPDs forward complaints to programmers for resolution. If the Commission finds that its objectives are not effectively achieved by the publication of this information in the Commission's database, it may revisit this decision.

66. Nonsubstantive Rule Amendments. More than 18 years have passed since the Commission adopted its regulations governing the closed captioning obligations. For purposes of clarity, the Commission makes two nonsubstantive editorial changes to the rules, which include eliminating certain outdated rule sections and updating the rule nomenclature. First, given that all benchmarks for the phase-in of the closed captioning requirements have passed, the Commission amends 47 CFR 79.1(b)(1) through (4) to eliminate these outdated benchmarks, so that only the fully phased-in captioning requirements remain in the rule. Second, the Commission amends 47 CFR 79.1(e)(9) to reflect the terminology used in this proceeding by making the nonsubstantive nomenclature change that VPDs “ensure the provision of closed captioning” rather than “provide closed captioning.”

67. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), Initial Regulatory Flexibility Analyses (IRFAs) were incorporated in the FNPRMs contained in the Closed Captioning Quality Order and Further Notice and the Closed Captioning Quality Second Further Notice (Further Notices). The Commission sought written public comment on the proposals in the two Further Notices, including comment on the two IRFAs. No comments were received on the IRFAs incorporated in the two Further Notices. The Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

68. Need for, and Objectives of, the Report and Order. The purpose of the proceeding is to apportion the responsibilities of VPDs and video programmers with respect to the provision and quality of closed captions on television programming to ensure that people who are deaf and hard of hearing have full access to such programming. The Second Report and Order follows the Commission's adoption in 2014 of captioning quality standards for programming shown on television and makes certain modifications to the closed captioning rules after consideration of the comments and reply comments received in response to the Further Notices.

69. In document FCC 16-17, the Commission amends its rules to assign responsibility for the quality of closed captioning to VPDs and video programmers, with each entity responsible for closed captioning issues that are primarily within its control. Additionally, the Commission maintains current rules that place primary responsibility for the provision of closed captioning on television programming on VPDs, but amends them to hold video programmers responsible for a lack of captions where they have failed to provide captions on non-exempt programs. Also, the Commission adopts rules to: (1) Require each video programmer to file with the Commission a certification that (a) the video programmer (i) is in compliance with the rules requiring the inclusion of closed captions, and (ii) either is in compliance with the captioning quality standards or has adopted and is following related Best Practices; or (b) is exempt from the captioning obligations; if the latter certification is submitted, the video programmer must specify the specific exemptions claimed; (2) allow each VPD to satisfy its obligations regarding the provision of closed captioning by ensuring that each video programmer whose programming it carries has certified its compliance with the Commission's closed captioning rules; (3) revise the procedures for receiving, serving, and addressing television closed captioning complaints in accordance with a burden-shifting compliance model; (4) establish a compliance ladder for the Commission's television closed captioning requirements that provides VPDs and video programmers with opportunities to take corrective action prior to enforcement action by the Commission; (5) require that each VPD use the Commission's web form when providing contact information to the VPD registry; and (6) require each video programmer to register with the Commission its contact information for the receipt and handling of written closed captioning complaints, and to use the Commission's web form for this purpose.

70. Summary of Significant Issues Raised by Public Comments in Response to the IRFA. No comments were filed in response to the two IRFAs.

71. Types of Small Entities Impacted:

72. Description of Projected Reporting, Record Keeping and other Compliance Requirements.

• Requires each video programmer to file with the Commission a certification that: (a) The video programmer is in compliance with the rules requiring the inclusion of closed captions, and either is in compliance with the captioning quality standards or has adopted and is following related Best Practices; or (b) is exempt from the captioning obligations; if the latter certification is submitted, the video programmer must specify the specific exemptions claimed;

• Revises the procedures for receiving, serving, and addressing television closed captioning complaints in accordance with a burden-shifting compliance model;

• Establishes a compliance ladder for certain of the Commission's television closed captioning requirements that provides VPDs and video programmers with opportunities to take corrective action prior to enforcement action by the Commission;

• Requires that each VPD use the Commission's web form when providing contact information to the VPD registry; and

• Requires each video programmer to register with the Commission its contact information for the receipt and handling of written closed captioning complaints, and to use the Commission's web form for this purpose.

73. Although document FCC 16-17 modifies reporting and recordkeeping requirements with respect to video programmer certifications, it will impose no new or additional requirements in this regard because the new rules will require video programmers to file certifications with the Commission rather than making them widely available as required under the current rules.

74. Document FCC 16-17 modifies the complaint process by adopting a burden-shifting compliance model, which is consistent with the newly adopted assignment of responsibilities to VPDs and video programmers. This model ensures that the party most able to remedy the captioning issue will have the responsibility to fix the problem. This will expedite complaint resolution and result in more effective results.

75. Steps Taken To Minimize Significant Impact on Small Entities, and Significant Alternatives Considered. The Commission believes that it has minimized the effect on small entities while making television programming more accessible to persons who are deaf and hard of hearing. The Commission does not establish different compliance or reporting requirements or timetables with respect to small entities because the importance of ensuring that video programming is accessible to people who are deaf and hard of hearing outweighs the small burdens associated with the new or different regulatory requirements adopted in document FCC 16-17. The Commission already has in place twelve categorical exemptions from its closed captioning requirements, including exemptions intended to benefit small entities, and any entity, including a small entity, may file a request for exemption based upon economic burden. In addition, the Commission's captioning rules generally use performance rather than design standards, and the Commission will publish a compliance guide to explain the new rules to small businesses.

76. The new rules assign responsibilities between VPDs and video programmers in a fair and equitable manner. Although assigning some direct responsibility for the provision and quality of closed captioning to video programmers imposes some new regulatory requirements on small entities that are video programmers, it will relieve burdens on small entities that are VPDs, because the Commission will be able to take direct compliance and enforcement action against video programmers rather than indirect action through VPDs.

77. The requirement for video programmers to file certifications with the Commission regarding compliance with the Commission's rules on the provisioning and quality of closed captioning imposes different reporting and recordkeeping obligations than currently required of video programmers, including small entities. However, the new rules do not impose additional burdens, because video programmers are required under the existing rules to provide certifications to VPDs and to make such certifications widely available under the Commission's rules. The new rules may ease the burden on video programmers, because video programmers will know to go directly to the Commission's Web site to provide certification and will not need to determine how to make such certification widely available. In addition, the new rules will ease the burden on VPDs, including small entities, and consumers by having all certifications in one easy to find place.

78. The revised procedures for receiving, serving, and addressing closed captioning complaints in accordance with a burden-shifting compliance model imposes different procedural requirements on VPDs, including small entities, and new procedural requirements on video programmers, including small entities. Because the burden-shifting model calls for VPDs and video programmers to each be responsible for closed captioning issues that are within their respective control instead of placing all responsibility on VPDs, the model will ease the burden on VPDs, including small entities, who will be able to shift the burden to video programmers when, after investigation, the VPD determines that the cause of the captioning problem was within the control of the video programmer. This approach will also allow the Commission to more directly and more easily address consumer complaints, thereby benefitting consumers.

79. The establishment of a compliance ladder for the Commission's closed captioning quality requirements, a process that provides VPDs and video programmers, including small entities, with opportunities to take corrective action prior to enforcement action by the Commission for certain captioning violations, will ease the burden on VPDs and video programmers, including small entities, because use of the compliance ladder will be more informal and less time-consuming than a formal enforcement proceeding.

80. The requirement that all contact information submitted by VPDs to the Commission for the VPD registry must be submitted using the Commission's web form system does not subject VPDs, including small entities, to additional reporting and recordkeeping requirements, because VPDs are already required to submit their contact information to the Commission. However, VPDs, including small entities, may be required to alter their reporting and recordkeeping associated with such submissions in order to comply with the rule. The Commission considers the cost for VPDs to transition to a mandatory web form method of filing to be minimal as compared with the ease and accuracy of filing and the benefits to the public derived from a mandatory web form system.

81. The requirement for video programmers to register and file contact information with the Commission imposes new reporting and recordkeeping obligations on video programmers, including small entities. However, the new requirement takes into consideration the impact on small entities. The filing of contact information is a simple task that should take no more than a few minutes. In addition, such requirements may benefit other entities, such as VPDs, including small entities, and consumers, who will be able to search the registration information for contact information.

82. Federal Rules Which Duplicate, Overlap, or Conflict With, the Commission's Proposals. None.

83. The Commission sent a copy of document FCC 16-17 in a report to Congress and the Governmental Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

Pursuant to the authority contained in sections 4(i), 303(r) and 713 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301(r) and 613, document FCC 16-17 is ADOPTED and the Commission's rules are AMENDED.

The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of document FCC 16-17, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 79 as follows:

During public meetings each year, the estimated biomass for Pacific mackerel is presented to the Pacific Fishery Management Council's (Council) CPS Management Team (Team), the Council's CPS Advisory Subpanel (Subpanel) and the Council's Scientific and Statistical Committee (SSC), and the biomass and the status of the fishery are reviewed and discussed. The biomass estimate is then presented to the Council along with the recommended overfishing limit (OFL) and acceptable biological catch (ABC) calculations from the SSC, along with the calculated ACL, HG, and ACT recommendations, and comments from the Team and Subpanel. Following review by the Council and after reviewing public comment, the Council adopts a biomass estimate and makes its catch level recommendations to NMFS. Under the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq., NMFS manages the Pacific mackerel fishery in the U.S. EEZ off the Pacific coast (California, Oregon, and Washington) in accordance with the FMP. Annual Specifications published in the Federal Register establish the allowable harvest levels (i.e. OFL/ACL/HG) for each Pacific mackerel fishing year. The purpose of this action is to implement the 2016-2017 ACL, HG, ACT and other annual catch reference points, including an OFL and an ABC that take into consideration uncertainty surrounding the current estimate of biomass for Pacific mackerel in the U.S. EEZ off the Pacific coast.

The CPS FMP and its implementing regulations require NMFS to set these annual catch levels for the Pacific mackerel fishery based on the annual specification framework and control rules in the FMP. These control rules include the HG control rule, which in conjunction with the OFL and ABC rules in the FMP, are used to manage harvest levels for Pacific mackerel, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq. According to the FMP, the quota for the principal commercial fishery is determined using the FMP-specified HG formula. The HG is based, in large part, on the current estimate of stock biomass. The annual biomass estimates are an explicit part of the various harvest control rules for Pacific mackerel, and as the estimated biomass decreases or increases from one year to the next, the resulting allowable catch levels similarly trend. The harvest control rule in the CPS FMP is HG = [(Biomass-Cutoff) * Fraction * Distribution] with the parameters described as follows:

1. Biomass. The estimated stock biomass of Pacific mackerel age one and above. For the 2016-2017 management season this is 118,968 mt.

2. Cutoff. This is the biomass level below which no commercial fishery is allowed. The FMP established this level at 18,200 mt.

3. Fraction. The harvest fraction is the percentage of the biomass above 18,200 mt that may be harvested.

4. Distribution. The average portion of the Pacific mackerel biomass estimated in the U.S. EEZ off the Pacific coast is 70 percent and is based on the average historical larval distribution obtained from scientific cruises and the distribution of the resource according to the logbooks of aerial fish-spotters.

At the June 2015 Council meeting, the Council adopted a new full stock assessment for Pacific mackerel completed by NMFS Southwest Fisheries Science Center and along with the Council's SSC, approved the resulting Pacific mackerel biomass estimate of 118,968 mt as the best available science for use in the 2016-2017 fishing year. Based on recommendations from its SSC and other advisory bodies, the Council recommended and NMFS is implementing, an OFL of 24,983 mt, an ABC and ACL of 22,822 mt, an HG of 21,161 mt, and an ACT of 20,161 mt for the fishing year of July 1, 2016, to June 30, 2017.

Upon attainment of the ACT, the directed fishing would close, reserving the difference between the HG and ACT (1,000 mt) as a set aside for incidental landings in other CPS fisheries. For the remainder of the fishing year incidental landings would also be constrained to a 45 percent incidental catch allowance when Pacific mackerel are landed with other CPS (in other words, no more than 45 percent by weight of the CPS landed per trip may be Pacific mackerel), except that up to 3 mt of Pacific mackerel could be landed incidentally without landing any other CPS. Upon attainment of the HG (21,161 mt), no retention of Pacific mackerel would be allowed in CPS fisheries. In previous years, the incidental set-aside established in the mackerel fishery has been, in part, to ensure that if the directed quota for mackerel was reached that the operation of the Pacific sardine fishery was not overly restricted. There is no directed Pacific sardine fishery for the 2016-2017 season; therefore, the need for a high incidental set-aside is reduced. The purpose of the incidental set-aside and the allowance of an incidental fishery are to allow for restricted incidental landings of Pacific mackerel in other fisheries, particularly other CPS fisheries, when the directed fishery is closed to reduce potential discard of Pacific mackerel and allow for continued prosecution of other important CPS fisheries.

The NMFS West Coast Regional Administrator would publish a notice in the Federal Register announcing the date of any closure to either directed or incidental fishing. Additionally, to ensure the regulated community is informed of any closure, NMFS would also make announcements through other means available, including fax, email, and mail to fishermen, processors, and state fishery management agencies.

On June 23, 2016, a proposed rule was published for this action and public comments solicited (81 FR 40844, as corrected by 81 FR 47154), with a comment period that ended on July 25, 2016. NMFS received no comments regarding the proposed Pacific mackerel specifications and no changes were made from the proposed rule. Detailed information on the fishery and the stock assessment are found in the report “Pacific Mackerel (Scomber japonicus) Stock Assessment for USA Management in the 2015-16 Fishing Year” (see FOR FURTHER INFORMATION CONTACT).

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act, the Assistant Administrator, NMFS, has determined that this final rule is consistent with the CPS FMP, other provisions of the Magnuson-Stevens Fishery Conservation and Management Act, and other applicable law.

These specifications are exempt from review under Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

This action does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act.

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

The 2016 Pacific cod total allowable catch (TAC) specified for vessels using jig gear in the BSAI is 1,394 metric tons (mt) as established by the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016) and one inseason adjustment (81 FR 5627, February 3, 2016).

The Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that jig vessels will not be able to harvest 1,000 mt of the remaining 2016 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(1). Therefore, in accordance with § 679.20(a)(7)(iii)(A), NMFS apportions 1,000 mt of Pacific cod to the annual amount specified for catcher vessels less than 60 feet LOA using hook-and-line or pot gear.

The 2016 Pacific cod TAC specified for catcher vessels greater than or equal to 60 feet LOA using hook-and-line gear in the BSAI is 448 mt as established by the final 2016 and 2017 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016). The Regional Administrator has determined that catcher vessels greater than or equal to 60 feet LOA using hook-and-line gear will not be able to harvest 448 mt of the remaining 2016 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)(3). Therefore, in accordance with § 679.20(a)(7)(iii)(A), NMFS apportions 448 mt of Pacific cod to catcher vessels less than 60 feet LOA using hook-and-line or pot gear.

The harvest specifications for Pacific cod included in the final 2016 harvest specifications for groundfish in the BSAI (81 FR 14773, March 18, 2016) and inseason adjustment (81 FR 5627, February 3, 2016) are revised as follows: 394 mt for vessels using jig gear, 0 mt for catcher vessels greater than or equal to 60 feet LOA using hook-and-line gear, and 7,674 mt to catcher vessels less than 60 feet LOA using hook-and-line or pot gear.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the reallocation of Pacific cod specified from other sectors to catcher vessels less than 60 feet LOA using hook-and-line or pot gear. Since the fishery is currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 17, 2016.

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

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

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

NMFS closed directed fishing for Pacific cod by catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI under § 679.20(d)(1)(iii) on February 5, 2016 (81 FR 7037, February 10, 2016).

NMFS has determined that as of August 17, 2016, approximately 1,511 metric tons of Pacific cod remain in the 2016 Pacific cod apportionment for catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI. Therefore, in accordance with § 679.25(a)(1)(i), (a)(2)(i)(C), and (a)(2)(iii)(D), and to fully use the 2016 total allowable catch (TAC) of Pacific cod in the BSAI, NMFS is terminating the previous closure and is opening directed fishing for Pacific cod by catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI. The Administrator, Alaska Region, NMFS, (Regional Administrator) considered the following factors in reaching this decision: (1) The current catch of Pacific cod by catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI and, (2) the harvest capacity and stated intent on future harvesting patterns of vessels in participating in this fishery.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the opening of directed fishing for Pacific cod by catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet and processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 17, 2016.

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

Without this inseason adjustment, NMFS could not allow the fishery for Pacific cod by catcher vessels less than 60 feet LOA using hook-and-line or pot gear in the BSAI to be harvested in an expedient manner and in accordance with the regulatory schedule. Under § 679.25(c)(2), interested persons are invited to submit written comments on this action to the above address until September 6, 2016.

This action is required by § 679.25 and is exempt from review under Executive Order 12866.