Federal Register Vol. 81, No.170,

On January 6, 2014, the U.S. Office of Personnel Management (OPM) published a proposed regulation at 79 FR 613. The Administrative Procedures Act requires Federal agencies to publish a final regulation after a notice and comment period. Therefore, OPM is now finalizing this rule. The rule gave special FEGLI rights to the following employees who were carrying employer sponsored life insurance other than FEGLI: Employees from Office of Thrift Supervision (OTS) transferred to Office of the Comptroller of the Currency (OCC) and Federal Deposit Insurance Corporation (FDIC) under the Act (Pub. L. 111-203). The new regulatory provisions include new subparts in part 870 of title 5 of the Code of Federal Regulations.

Authorizing legislation: Section 322 of Public Law 111-203 discusses the transfer of employees and their special FEGLI rights.

The relevant portions of this section states that if, after the 1-year period beginning on the transfer date, the Office of the Comptroller of the Currency or the Corporation determines that the Office of the Comptroller of the Currency or the Corporation will not continue to participate in any dental, vision or life insurance program of an agency from which an employee was transferred, a transferred employee who is a member of the program may, before the decision takes effect and without regard to any regularly scheduled open season, elect to enroll in the Federal Employees' Group Life Insurance Program established under chapter 87 of title 5, United States Code, without regard to any requirement of insurability.

For any transferred employee, enrollment in a life insurance plan administered by the agency from which the employee transferred, immediately before enrollment in a life insurance plan under chapter 87 of title 5, United States Code, shall be considered as enrollment in a life insurance plan under that chapter for the purpose of 8706(b)(1)(A) of title 5, United States Code.

These provisions allow a transferring employee that participated in an OTS life insurance program that is no longer available at OCC or FDIC to have a special enrollment period for FEGLI. OTS maintained the Office of Thrift Supervision Group Life Insurance Program in which OCC and FDIC did not continue to participate. Therefore, at approximately one year after the transfer date, July 21, 2011, OPM held a special enrollment period for transferred employees participating in Office of Thrift Supervision Group Life Insurance Program to enroll in FEGLI. The special enrollment period began on June 1, 2012 and ended July 29, 2012.

Any employee that enrolled in FEGLI during this special enrollment period will have their time in a life insurance plan administered by OTS credited towards their 5 years of continuous enrollment to continue FEGLI coverage into retirement.

There were other provisions in the Dodd-Frank Act relating to FEGLI coverage discussed in the Notice of Proposed Rulemaking. However, these do not require further changes in FEGLI rulemaking. We received no comments on the proposed rule.

Regulatory Impact Analysis: OPM has examined the impact of this proposed rule as required by Executive Order 12866 and Executive Order 13563, which directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public, health, and safety effects, distributive impacts, and equity). A regulatory impact analysis must be prepared for major rules with economically significant effects of $100 million or more in any one year. This rule is not considered a major rule because OPM expects that this rule will not impose costs of more than $100 million in any one year.

This rule has been reviewed by the Office of Management and Budget in accordance with Executive Orders 13563 and 12866.

We have examined this rule in accordance with Executive Order 13132, “Federalism,” and have determined that this rule will not have any negative impact on the rights, roles and responsibilities of State, local, or tribal governments.

For the reasons set forth in the preamble, the U.S. Office of Personnel Management amends 5 CFR part 870 as follows:

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive on or before the closing date for comments. We may change these special conditions based on the comments we receive.

On May 30, 2012, Bombardier applied for an amendment to type certificate no. T00003NY to include the new Model BD-700-2A12 and BD-700-2A13 airplanes. These airplanes are derivatives of the Model BD-700 series of airplanes currently approved under type certificate no. T00003NY, and are marketed as the Bombardier Global 7000 (Model BD-700-2A12) and Global 8000 (Model BD-700-2A13). These airplanes are ultra-long-range, executive-interior business jets.

Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.101, Bombardier must show that the Model BD-700-2A12 and BD-700-2A13 airplanes meet the applicable provisions of the regulations listed in type certificate no. T00003NY, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the BD-700-2A12 and BD-700-2A13 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

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

In addition to the applicable airworthiness regulations and special conditions, the Model BD-700-2A12 and BD-700-2A13 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.101.

The Model BD-700-2A12 and BD-700-2A13 airplanes will incorporate the following novel or unusual design features:

Systems that affect the airplane's structural performance, either directly or as a result of failure or malfunction. That is, the airplane's systems affect how it responds in maneuver and gust conditions, and thereby affect its structural capability. These systems may also affect the aeroelastic stability of the airplane. Such systems include flight-control systems, autopilots, stability-augmentation systems, load-alleviation systems, and fuel-management systems. These systems represent novel and unusual features when compared to the technology envisioned in the current airworthiness standards.

The flight-control system of the Model BD-700-2A12 and BD-700-2A13 airplanes will consist of a full-authority fly-by-wire system with Normal and Direct modes of operation. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards. Special conditions have been applied on past airplane programs, with similar systems, to require consideration of the effects of those systems on structures.

The regulatory authorities and industry developed standardized criteria in the Aviation Rulemaking Advisory Committee (ARAC) forum based on the criteria defined in Advisory Circular (AC) 25.672-1, dated November 11, 1983. The ARAC recommendations have been incorporated in European Aviation Safety Agency (EASA) Certification Specifications (CS) 25.302 and CS-25 Appendix K. FAA rulemaking on this subject is not complete, thus the need for special conditions.

These special conditions are similar to those previously applied to other airplane models and to EASA CS 25.302. Transport Canada Civil Aviation (TCCA) plans to include CS 25.302 in the Model BD-700-2A12 and BD-700-2A13 airplanes' Canadian certification basis. The differences between these FAA special conditions and the current CS 25.302, which the FAA regards as minor, are shown below. Both these special conditions and CS 25.302:

• Specify the design load conditions to be considered. Special conditions 2(a)(i) and 2(b)(ii)(1) of these special conditions clarify that, in some cases, different load conditions are to be considered due to other special conditions or equivalent-level-of-safety findings.

• allow consideration of the probability of being in a dispatched configuration when assessing subsequent failures and potential “continuation of flight” loads (see special condition 2(d), below). These special conditions, however, also allow using probability when assessing failures that induce loads at the “time of occurrence,” whereas CS 25.302 does not. The FAA provision is relieving as compared to CS 25.302.

The FAA chooses to preserve these minor differences and go forward with this version of the special conditions.

As discussed above, these special conditions are applicable to the Model BD-700-2A12 and BD-700-2A13 airplanes. Should Bombardier apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to the other model as well.

This action affects only certain novel or unusual design features on two model series of airplanes. It is not a rule of general applicability.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

Comments Invited

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive on or before the closing date for comments. We may change these special conditions based on the comments we receive.

On May 30, 2012, Bombardier applied for an amendment to type certificate no. T00003NY to include the new Model BD-700-2A12 and BD-700-2A13 airplanes. These airplanes are derivatives of the Model BD-700 series of airplanes currently approved under type certificate no. T00003NY, and are marketed as the Bombardier Global 7000 (Model BD-700-2A12) and Global 8000 (Model BD-700-2A13). These airplanes are ultra-long-range, executive-interior business jets.

Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.101, Bombardier must show that the Model BD-700-2A12 and BD-700-2A13 airplanes meet the applicable provisions of the regulations listed in type certificate no. T00003NY, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the BD-700-2A12 and BD-700-2A13 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

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

In addition to the applicable airworthiness regulations and special conditions, the Model BD-700-2A12 and BD-700-2A13 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.101.

The Bombardier Inc. Model BD-700-2A12 and BD-700-2A13 airplanes will have a novel or unusual design feature associated with sidestick controllers designed to be operated with only one hand.

The Bombardier Aerospace Model BD-700-2A12 and BD-700-2A13 airplanes are equipped with sidestick controllers instead of the conventional wheel or control stick. This controller is designed to be operated using only one hand. The requirements of § 25.397(c), which define limit pilot forces and torques for conventional wheel or stick controls, are not adequate for sidestick controllers because pilot forces are applied to sidestick controllers with only the wrist, not arms. Special conditions are necessary to specify the appropriate loading conditions for sidestick controllers.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these special conditions are applicable to the Model BD-700-2A12 and BD-700-2A13 airplanes. Should Bombardier apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to the other model as well.

This action affects only certain novel or unusual design features on two model series of airplanes. It is not a rule of general applicability.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

Comments Invited

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive on or before the closing date for comments. We may change these special conditions based on the comments we receive.

On May 30, 2012, Bombardier applied for an amendment to type certificate no. T00003NY to include the new Model BD-700-2A12 and BD-700-2A13 airplanes. These airplanes are derivatives of the Model BD-700 series of airplanes currently approved under type certificate no. T00003NY, and are marketed as the Bombardier Global 7000 (Model BD-700-2A12) and Global 8000 (Model BD-700-2A13). These airplanes are ultra-long-range, executive-interior business jets.

Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.101, Bombardier must show that the Model BD-700-2A12 and BD-700-2A13 airplanes meet the applicable provisions of the regulations listed in type certificate no. T00003NY, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the BD-700-2A12 and BD-700-2A13 airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

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

In addition to the applicable airworthiness regulations and special conditions, the Model BD-700-2A12 and BD-700-2A13 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.101.

The Bombardier Model BD-700-2A12 and BD-700-2A13 airplanes will have a novel or unusual design feature associated with flightdeck design, which incorporates a hydrophobic windshield coating to provide adequate pilot compartment view in the presence of precipitation. Sole reliance on such a coating, without windshield wipers, constitutes a novel or unusual design feature for which the applicable airworthiness regulations do not contain adequate or appropriate safety standards.

14 CFR 25.773(b)(1) requires a means to maintain a sufficiently clear portion of the windshield for both pilots to have an extensive view along the flight path during precipitation conditions. The regulations require this means to maintain such an area during precipitation in heavy rain at speeds up to 1.5 VSR1. Hydrophobic windshield coatings may depend to some degree on airflow to maintain a clear vision area. The heavy rain and high speed conditions specified in the current rule do not necessarily represent the limiting condition for this new technology. For example, airflow over the windshield, which may be necessary to remove moisture from the windshield, may not be adequate to maintain a sufficiently clear area of the windshield in low-speed flight or during surface operations. Alternatively, airflow over the windshield may be disturbed during such critical times as the approach to land, where the airplane is at a higher-than-normal pitch attitude. In these cases, areas of airflow disturbance or separation on the windshield could cause a failure to maintain a clear vision area on the windshield.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these special conditions are applicable to the Model BD-700-2A12 and BD-700-2A13 airplanes. Should Bombardier apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to the other model as well.

This action affects only certain novel or unusual design features on two model series of airplanes. It is not a rule of general applicability.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to PILATUS AIRCRAFT LTD. Models PC-12, PC-12/45, PC-12/47, and PC-12/47E airplanes installed with an affected engine mounting frame assembly. The NPRM was published in the Federal Register on June 13, 2016 (81 FR 38115). The NPRM proposed to correct an unsafe condition for the specified products and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country. The MCAI states:

The MCAI can be found in the AD docket on the Internet at: https://www.regulations.gov/document?D=FAA-2016-7048-0002.

We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (81 FR 38115, June 13, 2016) or on the determination of the cost to the public.

We reviewed the relevant data and determined that air safety and the public interest require adopting the AD as proposed except for minor editorial changes. We have determined that these minor changes:

• Are consistent with the intent that was proposed in the NPRM (81 FR 38115, June 13, 2016) for correcting the unsafe condition; and

• Do not add any additional burden upon the public than was already proposed in the NPRM (81 FR 38115, June 13, 2016).

We reviewed PILATUS AIRCRAFT LTD. PILATUS PC-12 Service Bulletin No: 71-009, Reference No: 345, Modification No: EC-15-0632, Revision 2, dated March 18, 2016; Pilatus Powerplant Mounting Frame, Removal/Installation, Date module/Technical publication 12-A-71-00-05-00A-920A-A, dated February 26, 2010, found in Pilatus Model type-PC-12, PC-12/45, PC-12/47 MSN-101-888 Aircraft Maintenance Manual (AMM), Document No. 02049, 12-A-AM-00-00-00-I; and Pilatus Powerplant Mounting Frame, Removal/Installation, Date module/Technical publication 12-B-71-00-05-00A-920A-A, dated October 4, 2010, found in Pilatus Model type-PC-12/47E MSN-1001-UP Aircraft Maintenance Manual (AMM), Document No. 02300, 12-B-AM-00-00-00-I. The service information describes procedures for determining if an affected engine mounting frame assembly (EMF) is installed, inspecting the EMF, and replacing the EMF with a serviceable EMF. 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.

We estimate that this AD will affect 888 products of U.S. registry. We also estimate that it would take about 3 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour.

Based on these figures, we estimate the cost of this AD on U.S. operators to be $226,440, or $255 per product.

In addition, we estimate that any necessary follow-on actions would cost the following amounts. We have no way of determining the number of products that may need these actions.

The visual and eddy current inspections would take about 3 work-hours for a cost of $255 per product.

The replacement of the EMF would take about 90 work-hours and require parts costing $33,336, for a cost of $40,986 per product.

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

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

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

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

For the reasons discussed above, I certify this AD:

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

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

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

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

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-7048; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

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

Airworthiness Directive 2016-16-01, Amendment 39-18599 (81 FR 51325, August 4, 2016) (“AD 2016-16-01”), currently requires an inspection of affected structural parts in the cargo and cabin compartments to determine if proper heat treatment has been done, and replacement if necessary, for certain Airbus Model A330-200 Freighter, -200, and -300 series airplanes.

As published, paragraphs (i) and (l) of the regulatory text identify the service information by the wrong service bulletin number. Where paragraphs (i) and (l) incorrectly specify Airbus Service Bulletins “A320-53-3227” and “A320-53-3228,” the correct service bulletin numbers are “A330-53-3227” and “A330-53-3228,” respectively.

Airbus has issued the following service information:

• Airbus Service Bulletin A330-53-3227, dated August 18, 2015. The service information describes procedures to inspect affected structural parts in the cargo compartment to determine if proper heat treatment has been done, and replacement of parts; and

• Airbus Service Bulletin A330-53-3228, dated August 18, 2015. The service information describes procedures to inspect affected structural parts in the cabin compartment to determine if proper heat treatment has been done, and replacement of parts.

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

This document corrects two errors and correctly adds the AD as an amendment to 14 CFR 39.13. Although no other part of the preamble or regulatory information has been corrected, we are publishing the entire rule in the Federal Register.

The effective date of this AD remains September 8, 2016.

Since this action only corrects a typographical error in two locations, it has no adverse economic impact and imposes no additional burden on any person. Therefore, we have determined that notice and public procedures are unnecessary.

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2013-24-12, Amendment 39-17686 (78 FR 71989, December 2, 2013) (“AD 2013-24-12”). AD 2013-24-12 applied to all The Boeing Company Model 747-8 and 747-8F airplanes. The NPRM published in the Federal Register on February 25, 2016 (81 FR 9370) (“the NPRM”). The NPRM was prompted by our determination that it is necessary to mandate the installation of new barrel nuts or new inspections to adequately address the unsafe condition. The NPRM proposed to retain the requirements of AD 2013-24-12 and also require installing new barrel nuts at the forward engine mounts; or identifying the part number of the barrel nuts, inspecting affected barrel nuts for gaps of the strut bulkhead and forward engine mount, and doing related investigative and corrective actions if necessary. The NPRM also proposed to remove airplanes from the applicability. The NPRM also proposed to require revising the maintenance or inspection program, as applicable, to include a new structurally significant item. We are issuing this AD to detect and correct cracked barrel nuts on a forward engine mount, which could result in reduced load capacity of the forward engine mount, separation of an engine under power from the airplane, and consequent loss of control of the airplane.

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

Boeing stated that it supports the NPRM.

The Civil Aviation Administration of China (CAAC) requested that we revise the applicability of the proposed AD to ensure that all necessary actions are applied on all applicable airplanes. CAAC explained that it compared the effectivity between Boeing Service Bulletin 747-71A2329, Revision 1, dated May 28, 2015, which is referred to in the applicability of the proposed AD, and Boeing Special Attention Service Bulletin 747-71-2332, Revision 1, dated May 28, 2015 (which is referred to as the appropriate source of service information for doing the actions specified in paragraph (k) of the proposed AD). CAAC explained that there are more airplanes in Boeing Special Attention Service Bulletin 747-71-2332, Revision 1, dated May 28, 2015, than in Boeing Service Bulletin 747-71A2329, Revision 1, dated May 28, 2015.

We agree to clarify and revise the applicability of this AD. The difference in effectivity between Boeing Service Bulletin 747-71A2329, Revision 1, dated May 28, 2015, and Boeing Special Attention Service Bulletin 747-71-2332, Revision 1, dated May 28, 2015, is that there are six additional airplanes in Boeing Special Attention Service Bulletin 747-71-2332, Revision 1, dated May 28, 2015—four of these airplanes are foreign-registered, and the other two airplanes have not been delivered yet. We have revised paragraph (c) of this AD to refer to Boeing Special Attention Service Bulletin 747-71-2332, Revision 1, dated May 28, 2015. We have also revised paragraph (g) of this AD to specify that only airplanes identified in Boeing Service Bulletin 747-71A2329, Revision 1, dated May 28, 2015, are affected by that paragraph.

The CAAC requested that we explain the change in the applicability paragraph of the proposed AD from that of AD 2013-24-12. The CAAC explained that the applicability paragraph of AD 2013-24-12 applies to all The Boeing Company Model 747-8 and 747-8F series airplanes. The CAAC stated that the NPRM would retain the requirements of AD 2013-24-12, but the applicability paragraph of the proposed AD only applies to The Boeing Company Model 747-8 and 747-8F airplanes identified in Boeing Service Bulletin 747-71A2329, Revision 1, dated May 28, 2015.

We agree to clarify. AD 2013-24-12 was issued as an interim action. Boeing developed Boeing Special Attention Service Bulletin 747-71-2332, dated September 27, 2013 (currently at Revision 1, dated May 28, 2015), which contains a newly designed barrel nut. The effectivity in Boeing Service Bulletin 747-71A2329, Revision 1, dated May 28, 2015, identifies the airplanes that did not have the newly designed barrel nuts installed upon delivery. Because this AD does not include airplanes that have the newly designed barrel nuts installed during production, the applicability of AD 2013-24-12 was reduced. No changes have been made to this AD in this regard.

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

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

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

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

We reviewed the following service information:

• Boeing Service Bulletin 747-71A2329, Revision 1, dated May 28, 2015. The service information describes procedures for inspecting for cracked bolts and barrel nuts on the forward engine mounts, replacing cracked bolts and barrel nuts, and sending the inspection results and cracked parts to Boeing.

• Boeing Special Attention Service Bulletin 747-71-2332, Revision 1, dated May 28, 2015. The service information describes procedures for installing new barrel nuts, inspecting the barrel nuts at the forward engine mount to determine the part number, inspecting for gaps of the strut bulkhead and forward engine mount, and doing applicable related investigative and corrective actions.

• Boeing 747-8/-8F Airworthiness Limitations (AWLs), Document Number D011U721-02-01, dated September 2015, which includes a limitation for Structurally Significant Item (SSI) 54-50-003c. The service information describes procedures for structural inspections.

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

We estimate that this AD affects 7 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We have received no definitive data that would enable us to provide cost estimates for the bootstrap installation specified in this AD. We estimate the following costs to do other necessary related investigative and corrective actions that would be required based on the results of the inspection. We have no way of determining the number of aircraft that might need these actions:

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

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

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

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

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

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

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

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

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

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc. Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. The NPRM published in the Federal Register on May 10, 2016 (81 FR 28764) (“the NPRM”). The NPRM was prompted by two in-service incidents of a loss of all air data information in the flight deck. The NPRM proposed to require a revision of the AFM emergency procedures section to provide procedures to guide the crew on how to stabilize the airplane airspeed and attitude for continued safe flight when a loss of all air data information has occurred in the flight deck. We are issuing this AD to prevent loss of control when a loss of all air data information has occurred in the flight deck.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2015-12, dated June 23, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc. Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. The MCAI states:

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-6414.

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

The Airline Pilots Association International (ALPA) requested further investigation and system modifications for the ice crystal contamination. ALPA stated that although the NPRM proposed an amendment to the AFM procedures for the crew, it does not believe that this AFM procedure addresses the root cause of the unsafe condition.

The Air Line Pilots Association stated that the AFM revision will not address the root cause of the high-altitude icing (ice crystal contamination), and requested that further investigation be done for the ice crystal contamination issue and remedies be provided in addition to the AFM amendments.

We agree that the AFM revision will not address the root cause of the high-altitude icing (ice crystal contamination). The manufacturer is investigating the issue, but there is no timetable for a final resolution. Should the manufacturer develop modifications to prevent this problem, the FAA will consider further rulemaking. The incorporation of the AFM procedures is meant to be used to guide the crew on how to stabilize the airplane airspeed and altitude for continued safe flight in icing conditions. However, further investigation into this matter extends beyond the scope of this AD.

We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

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

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

Bombardier, Inc. has issued Section 03-19, “Unreliable Airspeed,” of Chapter 3, “Emergency Procedures,” in the Bombardier CRJ Series Regional Jet Model CL-600-2B19 Airplane Flight Manual CSP A-012, Revision 64B, dated December 8, 2015. The service information describes procedures to guide the crew to stabilize the airplane's airspeed and attitude for continued safe flight when a loss of all air data information has occurred in the flight deck. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 500 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

Authority for all parts of the EAR other than part 745 rests, in part, on Executive Order 13222 of August 17, 2001—National Emergency with Respect to Export Control Regulations, 66 FR 44025, 3 CFR, 2001 Comp., p. 783 and on annual notices extending the emergency declared in that executive order. This rule revises the authority paragraphs for the affected parts of the EAR to cite the most recent such notice, which the President signed on August 4, 2016.

This rule is purely procedural and makes no changes other than to revise CFR authority paragraphs for the purpose of making the authority citations current. It does not change the text of any section of the EAR, nor does it alter any right, obligation or prohibition that applies to any person under the EAR.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). This rule does not impose any regulatory burden on the public and is consistent with the goals of Executive Order 13563. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This rule does not involve any collection of information.

3. This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.

4. The Department finds that there is good cause under 5 U.S.C. 553(b)(B) to waive the provisions of the Administrative Procedure Act requiring prior notice and the opportunity for public comment because they are unnecessary. This rule only updates legal authority citations. It clarifies information and is non-discretionary. This rule does not alter any right, obligation or prohibition that applies to any person under the EAR. Because these revisions are not substantive changes, it is unnecessary to provide notice and opportunity for public comment. In addition, the 30-day delay in effectiveness otherwise required by 5 U.S.C. 553(d) is not applicable because this rule is not a substantive rule. Because neither the Administrative Procedure Act nor any other law requires that notice of proposed rulemaking and an opportunity for public comment be given for this rule, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Accordingly, no Final Regulatory Flexibility Analysis is required and none has been prepared.

Accordingly, parts 730, 732, 734, 736, 738, 740, 742, 743, 746, 747, 748, 750, 754, 756, 758, 760, 762, 764, 766, 768, 770, 772 and 774 of the EAR (15 CFR parts 730-774) are amended as follows:

Introduction

Section 7A of the Clayton Act (the “Act”) requires the parties to certain mergers or acquisitions to file with the Commission and DOJ to allow the Agencies to conduct their initial review of a proposed transaction's competitive impact and requires the parties to wait a specified period of time before consummating such transactions. The reporting requirement and the waiting period that it triggers are intended to enable the Antitrust Agencies to determine whether a proposed merger or acquisition may violate the antitrust laws if consummated and, when appropriate, to seek a preliminary injunction in federal court to prevent consummation, pursuant to Section 7 of the Act.

Section 7A(d)(1) of the Act, 15 U.S.C. 18a(d)(1), directs the Commission, with the concurrence of the Assistant Attorney General, in accordance with the Administrative Procedure Act, 5 U.S.C. 553, to require that premerger notification be in such form and contain such information and documentary material as may be necessary and appropriate to determine whether the proposed transaction may, if consummated, violate the antitrust laws. Section 7A(d)(2) of the Act, 15 U.S.C. 18a(d)(2), grants the Commission, with the concurrence of the Assistant Attorney General, in accordance with 5 U.S.C. 553, the authority to define the terms used in the Act and prescribe such other rules as may be necessary and appropriate to carry out the purposes of Section 7A.

Pursuant to that authority, the Commission, with the concurrence of the Assistant Attorney General, developed the Rules, codified in 16 CFR parts 801, 802 and 803, and the Form and its associated Instructions, codified at part 803—appendix, to govern the form of premerger notifications to be provided by merging parties.

HSR Filings provide the Agencies with the information and documentary material necessary for an initial evaluation of the potential anticompetitive impact of significant mergers, acquisitions and certain similar transactions. Currently, all HSR Filings are submitted in paper. Through these amendments to the Rules, the Agencies will allow the submission of HSR Filings digitally on DVD (“DVD filings”). The acceptance of DVD filings requires certain conforming changes to the Instructions to the Form, so the Commission is also taking this opportunity to clarify the Instructions and make them easier to use.

Since the inception of the HSR program, the HSR Form and its attachments have been submitted in paper. In 2006, an electronic filing option was introduced that would allow filers to upload HSR Filings directly to the Agencies but that option failed to gain traction due to the limitations of the underlying technology, and it was soon discontinued. While the Agencies continue to explore an electronic filing option, they have decided to accept the submission of HSR Filings digitally on DVD. Accordingly, the Commission amends part 803 to delete references to the discontinued electronic filing option and revises these sections and the Instructions to the Form found in the appendix to part 803 to allow for DVD filings. Documents submitted by the parties with the filing are typically created and stored in digital format. Allowing parties to submit these digital files on electronic media will be more efficient and cost-effective, providing benefits to filing parties as well as the Agencies:

To provide maximum flexibility, filing parties will still have the traditional option of submitting HSR Filings in paper. Submitting an HSR Filing partially on DVD and partially in paper will not be permitted, however. Additionally, DVD submissions must be accompanied by original hard copies of the cover letter, certification and affidavit. The individual rule amendments associated with DVD filing are described more fully below.

Additionally, this rulemaking makes minor changes to the Form Instructions, many of which are unrelated to DVD filing, to reduce the burden on filing parties by making it easier to prepare the Form and comply with the HSR Filing requirements. These changes are not substantive in nature, and involve formatting, clarification, and simplification, as well as the deletion of immaterial language, with the goal of eliminating confusion for filing parties, as noted below.

The internet portal established in 2006, www.hsr.gov, to allow the electronic filing of HSR Filings is no longer technologically viable, and references to HSR.gov are removed from all Rules in which they appear and the Instructions.

Section 803.2(e)(1) currently allows filers to forego the physical production of documents responsive to Item 4(b) by incorporating by reference documents previously filed with the Agencies in other transactions. The purpose of the rule was to avoid the costly duplication of responsive documents that were already in the possession of the Agencies. However, given § 803.2(e)(2), which allows parties to cite to an Internet address rather than provide hard copies of responsive documents, and the ease of copying documents onto a DVD without any expensive hard copy duplication, § 803.2 is being amended to delete § 803.2(e)(1). The existing, current, § 803.2(e)(2) will be renumbered to § 803.2(e), and the new § 803.2(e) has been amended for clarity.

To ensure the submission of compatible and readable electronic files, and to avoid problems and delays in processing HSR Filings, paragraph (f) of § 803.2 has been amended to require the use of specific formatting when submitting an HSR Filing on DVD, and to remove the reference to www.hsr.gov. The filing person is responsible for ensuring that the formatting requirements are observed and is subject to a notice of deficient filing if an unacceptable format is submitted. See http://www.ftc.gov/enforcement/premerger-notification-program for all current DVD Filing format requirements.

Section 803.3 identifies the specific information that a filing person must provide when not responding to an Item on the Form. Paragraph (d) identifies the specifics of making a claim of privilege. Paragraph (d) is amended to require the titles and/or positions of the author of a document, the addressee, and all recipients of the document being withheld or redacted under a claim of privilege to enable the Agencies to better assess if the privilege applies.

Section 803.5 requires an affidavit from the filing person attesting to the good faith intention of the person filing to proceed with the transaction. The affidavit must be attached to the Form at the time of filing. Paragraphs (a)(1), (a)(3), and (b) are amended to address inclusion of the affidavit when using the DVD filing option. If only a scanned version of the signed affidavit is available at the time of filing, it must be submitted on the DVD, and the original signed hard copy should be provided to the FTC as soon as possible.

Persons required by the Act to submit HSR Filings must comply with specified statutory waiting periods before consummating the transaction. Section 803.10(c)(1)(i) is amended to define the “date of receipt and means of delivery” for purposes of determining when the waiting period begins for filings submitted on DVD. Delivery is to be effected by providing a DVD filing directly to the designated agency offices, by either hand or certified or registered mail, FedEx or UPS, during normal business hours.

References and paragraphs relating exclusively to “electronic” filing, as well as references to www.hsr.gov, have been deleted to avoid confusion, as the submission of filings electronically is not currently available.

A number of changes have been made to the Form Instructions, including changes unrelated to DVD filing, that are intended to clarify the Instructions and simplify the process of completing an HSR Form. Many of these changes involve new formatting or the substitution or deletion of a word, sentence or paragraph. The more significant changes entail the following amendments:

Accounts for the option of filing using a DVD, including specific formatting and submission requirements.

Clarifies that estimated financial information provided in the Form should include an “est.” notation. Also specifies that additional pages should be included within the Form, not with the Documentary Attachments.

Eliminates the requirement for an explanatory attachment regarding valuation.

Clarifies the process and requirements for submitting HSR filing fees.

Specifies that identification of a second contact person is required.

Clarifies how to respond where a transaction involves a mixed deal including voting securities, and/or non-corporate interests, and/or assets.

Reorganized and reworded for clarity. Clarifies that the description of the transaction should include a brief and simple description of the relevant assets or business operation(s) to be acquired. Deletes requirement for identification of expected dates of major events and deletes paragraph discussing acquisitions “from a holder other than the issuer or unincorporated entity” to reduce confusion.

Clarifies that agreement schedules are not required unless they represent some agreement between the parties (e.g., a non-compete). Specifies that parties filing on a letter of intent may also submit a draft of the definitive agreement, if one exists.

Reorganized and amended to clarify the types of reports that are acceptable (e.g., unaudited reports that are relied upon by the board are permitted), and from which entities reports are required.

Clarifies that document title, date, and author information is required for both 4(c) and 4(d) documents. Additionally amended to clarify the proper labeling convention for these documents, as well as the privilege log requirements outlined in § 803.3(d).

Simplifies the instructions.

Amended to clarify that only shareholders with 5% or more, but less than 50% must be identified.

Clarifies the instructions.

Amended to clarify that all six-digit NAICS industry code overlaps must be reported, regardless of whether there is a ten-digit NAICS overlap.

Amended to clarify which entities should be listed.

On March 25, 2016, OSHA published a final rule entitled Occupational Exposure to Respirable Crystalline Silica (81 FR 16285-16890). The final rule retained the preceding permissible exposure limits (PELs) for respirable crystalline silica in general industry (29 CFR 1910.1000, Table Z-3), shipyards (29 CFR 1915.1000, Table Z), and construction (29 CFR 1926.55, appendix A), and added footnotes to make clear that these PELs apply to any sectors or operations where the new PEL of 50 ­μg/m3 is not in effect. The preceding PELs apply to operations that are not covered by the new standards, such as the processing of sorptive clays. The preceding PELs are also applicable during the time between publication of the silica rule and the dates established for compliance with the rule, as well as in the event of regulatory delay, a stay, or partial or full invalidation by the Court.

This document corrects typographical errors in the formulas for the preceding PELs, so that they will appear as they did prior to publication of the final rule.

This document was prepared under the direction of David Michaels, Ph.D., MPH, Assistant Secretary of Labor for Occupational Safety and Health. It is issued under the following authorities: Sections 4, 6, and 8 of the Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); section 107 of the Contract Work Hours and Safety Standards Act (the Construction Safety Act) (40 U.S.C. 3704); section 41 of the Longshore and Harbor Worker's Compensation Act (33 U.S.C. 941); Secretary of Labor's Order 1-2012 (77 FR 3912 (1/25/2012)); and 29 CFR part 1911.

Accordingly, for the reasons set forth in the preamble above, the Occupational Safety and Health Administration is amending 29 CFR parts 1910, 1915, and 1926 as follows:

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

Organization of this document. The following outline is provided to aid in locating information in this preamble.

On November 19, 2012, the State of Connecticut submitted a formal revision to its State Implementation Plan (SIP). The SIP revision consists of a request to remove two regulations from its SIP that regulate open burning (Regulations of Connecticut State Agencies (RCSA) section 22a-174-17 (formerly section 19-508-17) and “portable fuel container spillage control” (RCSA section 22a-174-43), and to add into the SIP a statute, Connecticut General Statutes (CGS) section 22a-174(f), that regulates open burning.

Connecticut adopted regulations to control open burning in 1972. On May 31, 1972, EPA approved RCSA section 19-508-17 “Control of Open Burning” into the Connecticut SIP (37 FR 10842). In 1983, the state re-codified section 19-508-17 as section 22a-174-17 and, subsequently, adopted revisions to CGS section 22a-174(f) to control open burning, effective March 30, 2000. Connecticut intended that the statute supersede the regulation. Although CGS section 22a-174(f) authorizes the Connecticut Department of Energy and Environmental Protection (CT DEEP) to adopt regulations to control open burning, the agency did not adopt a new regulation and, instead, enforces CGS section 22a-174(f) as the state's sole authority for regulation of open burning.

On September 27, 2011, CT DEEP proposed to repeal RCSA section 22a-174-17 and held a public hearing on November 9, 2011. CT DEEP repealed RCSA section 22a-174-17, effective on September 10, 2012. On November 19, 2012, CT DEEP submitted a SIP revision to EPA to remove RCSA section 19-508-17 “Control of Open Burning” from the Connecticut SIP and to replace it with a Connecticut statute, CGS section 22a-174(f). Because implementation of this statute depends on having a definition of “brush,” Connecticut included a definition of this term in its December 14, 2015 SIP submittal to meet infrastructure requirements of the Clean Air Act for the 2012 fine particle (PM2.5) National Ambient Air Quality Standards (NAAQS).

Connecticut adopted regulations to control portable fuel container spillage in 2004. On August 31, 2006, EPA approved RCSA section 22a-174-43 “Portable Fuel Container Spillage Control” into the Connecticut SIP (71 FR 51761). In 2007, EPA issued a regulation entitled “Control of Hazardous Air Pollutants from Mobile Sources” (72 FR 8428), which included new federal requirements for portable fuel containers. See 40 CFR part 59, subpart F “Control of Evaporative Emissions from New and In-Use Portable Fuel Containers.”

On September 27, 2011, the CT DEEP proposed to repeal RCSA section 22a-174-43 “Portable Fuel Container Spillage Control” and held a public hearing on November 9, 2011. CT DEEP repealed RCSA section 22a-174-43, effective on September 10, 2012. On November 19, 2012, CT DEEP submitted a SIP revision to EPA to remove RCSA section 22a-174-43 “Portable Fuel Container Spillage Control” from the Connecticut SIP.

The open burning rule, RCSA section 19-508-17, which is currently in the Connecticut SIP, identifies the types of open fires that are allowed within state boundaries, and the types of fires that require a written certificate from the Commissioner. Open fires that are allowed include barbecues or other outdoor open fires for cooking food; campfires, bonfires, and other fires for ceremonial or recreational purposes; fires to abate a fire hazard as directed by a responsible fire official; fires in devices used by construction or other workers for heating purposes; and small fires needed for activities such as street installation or paving activities and repairing utilities.

Fires that require a written certificate from the Commissioner include fires for fire-fighting training; fires for preventing or controlling diseases or pests, including agricultural diseases and pests; agricultural burning for vegetation management; fires for the disposal of dangerous materials where no reasonable alternative disposal method is available; and other fires which the Commissioner determines are necessary for protection of public health.

CGS section 22a-174(f) allows local open-burning officials to issue permits for open burning on residential property and for fire training, insect control, agricultural purposes, natural disaster clean-up, wildlife habitat and vegetative management and ecological sustainability. It also allows officials to issue permits for open burning of brush in municipal landfills, transfer stations and municipal recycling centers. Open burning of brush is not allowed when national or state air quality standards may be exceeded, where it may create a hazardous health condition, when forest fire danger is extreme, where woodland or grass land is within 100 feet of the proposed burn, or where prohibited by municipal ordinance. Burning of leaves, demolition waste or other solid waste in municipal landfills is also prohibited. The statute also establishes a process for certifying local open burning officials.

Based on a comparison of provisions in SIP-approved RCSA section 19-508-17 and CGS section 22a-174(f), EPA has determined that the statute is at least as stringent as the regulation except in one regard. CGS section 22a-174(f) includes the term “brush,” but does not include a definition of this term. Instead of including the definition of brush in the statute, Connecticut added “brush” to RCSA section 22a-174-1 (definitions), effective February 1, 2010: “Brush” means shrubs, vegetation or prunings, the diameter of which is not greater than three inches at the widest point.” Connecticut included this definition as contained in RCSA section 22a-174-1(19) as part of the state's December 14, 2015 SIP submittal for infrastructure requirements for the 2012 PM2.5 NAAQS. Therefore, EPA has determined that removing RCSA section 19-508-17 from the Connecticut SIP and replacing it with CGS section 22a-174(f) is consistent with the Clean Air Act section 110(l) anti-backsliding requirements. Accordingly, EPA is approving: (1) The removal of RSCA section 19-508-17 from the Connecticut SIP; (2) the addition of CGS section 22a-174(f), submitted on November 19, 2012, into the Connecticut SIP; and (3) the addition of the definition of “brush” in RSCA section 22a-174-1, submitted on December 14, 2015, into the Connecticut SIP.

The regulation that controls portable fuel container spillage presently in the Connecticut SIP, RCSA section 22a-174-43, was adopted by the state in 2004, and applies to any person who sells, supplies, offers for sale, or manufactures a portable fuel container or spout for use in Connecticut. In 2007, EPA promulgated national evaporative emission standards for portable fuel containers. EPA's regulation prohibits manufacturers or importers from selling, offering for sale, introducing or delivering for introduction into commerce in the United States, or importing, any new portable fuel container that is subject to the emissions standards of the regulation and is manufactured after December 31, 2008, unless it is covered by a valid certificate of conformity, it is labeled as required, and it complies with all of the applicable requirements of the regulation, including compliance with the emissions standards for its useful life. After June 30, 2009, no manufacturer or importer may sell, offer for sale, introduce or deliver into commerce in the United States, or import any new portable fuel container that was manufactured prior to January 1, 2009 unless it meets the requirements of the regulation.

EPA's regulation also prohibits wholesale distributors from selling, offering for sale, or distributing any portable fuel container in the United States that is subject to the emissions standards of the regulation and is manufactured after December 31, 2008, unless it is covered by a valid certificate of conformity and is labeled as required. After December 31, 2009, no wholesale distributor may sell, offer for sale, or distribute in the United States any portable fuel container that was manufactured prior to January 1, 2009 unless it meets all of the requirements of the regulation. After December 31, 2009, all new portable fuel containers shall be deemed to be manufactured after December 31, 2008 unless they are in retail inventory.

Even though the applicability date for SIP-approved RCSA section 22a-174-43 is earlier, May 1, 2004, all fuel containers must now (in the year 2016 and beyond) meet the federal regulation, which is as stringent as RCSA section 22a-174-43. Therefore, EPA has determined that removal of RCSA section 22a-174-43 from the Connecticut SIP is consistent with the Clean Air Act section 110(l) anti-backsliding requirements and is approvable.

EPA is approving Connecticut's request, submitted to EPA on November 19, 2012, to remove from the Connecticut SIP RCSA section 19-508-17 “Control of Open Burning” and section 22a-174-43 “Portable Fuel Container Spillage Control.” We are also incorporating into the Connecticut SIP the following Connecticut statute which was included in the November 19, 2012 submittal: Connecticut General Statute, Title 446c, Section 22a-174 (Formerly Sec. 19-508) “Powers of the commissioner. Regulations. Fees. Exemptions. General permits. Appeal of commissioner's action re permit applications,” (f) “Open Burning,” effective March 30, 2000. In addition, EPA is approving the definition of “brush” as contained in RCSA section 22a-174-1, which was included in Connecticut's December 14, 2015 submittal to meet infrastructure requirements under sections 110(a)(1) and 110(a)(2) of the Clean Air Act for the 2012 PM2.5 NAAQS.

The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This rule will be effective October 31, 2016 without further notice unless the Agency receives relevant adverse comments by October 3, 2016.

If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on October 31, 2016 and no further action will be taken on the proposed rule. 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.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Connecticut General Statute, Title 446c, Section 22a-174 (Formerly Sec. 19-508) “Powers of the commissioner. Regulations. Fees. Exemptions. General permits. Appeal of commissioner's action re permit applications,” (f) “Open burning,” effective March 30, 2000, as published in the General Statutes of Connecticut, revision of 1958, revised to January 1, 2015, volume 8, described in the amendments to 40 CFR part 52 set forth below. EPA is also finalizing the incorporation by reference of RCSA section 22a-174-1(19) “brush,” effective February 1, 2010, as published in the State of Connecticut General Statutes, revised to January 1, 2015, described in the amendments to 40 CFR part 52 set forth below. Note that the definition for paragraph (19) in the statute that is incorporated by reference is the same as the definition that became effective in Connecticut on February 1, 2010. The EPA has made, and will continue to make, these documents generally available electronically through http://www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the 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).

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 31, 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 section 307(b)(2).)

Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

This Notice provides guidance and clarification to transit agencies and transit vehicle manufacturers regarding FTA's implementation of the FAST Act's amendments to 49 U.S.C. 5323(j)(2)(C).

Section 3011 of the FAST Act (Pub. L. 114-94, enacted December 4, 2015) amended the rolling stock waiver in 49 U.S.C. 5323(j)(2)(C) to require a two-step increase in the domestic content of rolling stock as follows:

When procuring rolling stock with FTA financial assistance (including train control, communication, traction power, and rolling stock prototypes), the cost of components and subcomponents produced in the United States for fiscal years 2016 and 2017, is more than 60 percent of the cost of all components of the rolling stock; for fiscal years 2018 and 2019, is more than 65 percent of the cost of all components of the rolling stock; and for fiscal year 2020 and each fiscal year thereafter, is more than 70 percent of the cost of all components of the rolling stock.

Given the potential effect of the FAST Act changes to vehicle procurements by the statutory use of the term “produced,” transit agencies and transit vehicle manufacturers asked FTA to provide specific guidance on the applicability of the FAST Act's new Buy America provisions to contracts entered into before, on, or after October 1, 2015, the effective date set forth in section 1003 of the FAST Act.

Under existing law (49 U.S.C. 5325(e)), recipients of FTA financial assistance may enter into rolling stock contracts for up to five years for buses and seven years for railcars. In FTA Circular 4220.1F, “Third Party Contracting Guidance,” FTA permits these five- and seven-year periods to cover the recipient's “material requirements” for rolling stock and replacement needs from the effective date of the contract through the end of the fifth or seventh year. FTA does not require that “the recipient must obtain delivery, acceptance, or even fabrication in five or seven years—instead, it means only that FTA limits a contract to purchasing no more than the recipient's material requirements for rolling stock or replacement parts for five or seven years, based on the effective date of the contract.” See FTA Circular 4220.1F, Chapter IV, page 23. Under this rule, options for vehicles must be exercised within the five- or seven-year contract term, although the vehicles may be produced and delivered after the contract term.

The FAST Act identified two points in time: (1) “when procuring rolling stock,” which FTA's proposed policy interpreted as the date the vehicle procurement contract was signed; and (2) “the cost of components and subcomponents produced in the United States for fiscal years . . .”, which FTA interpreted as the delivery date of the vehicle.

Individual and Joint Procurements. FTA proposed to implement the FAST Act by requiring that if a recipient (or a group of recipients under a joint procurement) enters into a contract for rolling stock after the effective date of the FAST Act, i.e., October 1, 2015, the new FAST Act provisions for domestic content of the rolling stock would apply based on the delivery date of the vehicle. Thus, for vehicles delivered in FY2018 and FY2019, the domestic content would have to be more than 65 percent, and for vehicles delivered in FY2020 and beyond, the domestic content would have to be more than 70 percent. These higher domestic content requirements would apply to all contracts signed after the effective date of the FAST Act unless FTA issues a waiver, which FTA addressed in a separate Federal Register Notice (81 FR 20051, April 6, 2016).

In its proposed policy statement, FTA proposed that the FAST Act amendments would not apply to a contract entered into before the effective date of the FAST Act, i.e., October 1, 2015, even if the contract provides for the delivery of vehicles after FY2017. In addition, the policy statement proposed to continue to permit options to be exercised for those contracts entered into before October 1, 2015, even if the vehicles would be delivered outside the five- or seven-year contract term, consistent with Circular 4220.1F.

However, recipients who were not direct parties to a contract executed before October 1, 2015, would not be allowed to exercise options (a/k/a “piggybacking”) on those contracts and thereby could not take advantage of the lower domestic content requirement. Because the assignment of options to a third party results in the third party and the vendor entering into a new contract that would be entered into after the effective date of the FAST Act, FTA proposed to apply the increased domestic content requirements to vehicles scheduled for delivery in FY 2018 and beyond.

State Purchasing Schedules. In the proposed policy statement, FTA recognized that some recipients and subrecipients purchase rolling stock from a State purchasing schedule (i.e., an arrangement that a State has negotiated with multiple vendors in which those vendors essentially agree to provide an option to the State, as well as subordinate and local governmental entities allowed to participate in the schedule, to acquire specific property or services in the future at established prices). Because the purchasing schedule does not commit the State to procuring a minimum number of vehicles, a “contract” does not exist until a State, recipient, or subrecipient enters into a purchase order with a vendor listed on the schedule.

Therefore, the proposed policy statement proposed to retain the 60 percent domestic content requirement for purchase orders placed against State purchasing schedules before October 1, 2015, regardless of the ultimate delivery date(s). However, for purchase orders placed against State purchasing schedules on or after October 1, 2015, FTA proposed to adopt the elevated FAST Act content requirements.

This interpretation is consistent with the language of the statute, follows Congress' intention to increase the domestic content for vehicles produced in FY2018 or later, and adheres to basic principles of statutory construction.

Calculation of Domestic Content for Components and Subcomponents. In its proposed policy statement, FTA proposed to adjust the calculation for determining whether a component is of domestic origin under 49 CFR 661.11 to mirror the increase in domestic content for FY2018 and beyond. Currently under 49 CFR 661.11(g), “for a component to be of domestic origin, more that 60 percent of the subcomponents of that component, by cost, must be of domestic origin, and the manufacture of the component must take place in the United States. If, under the terms of this part, a component is determined to be of domestic origin, its entire cost may be used in calculating the cost of domestic content of an end product.”

Thus, for vehicles to be delivered in FY2018 and 2019, FTA proposed that more than 65 percent of the subcomponents of that component, by cost, must be of domestic origin, and for FY2020 and beyond, more than 70 percent of the subcomponents of the component must be of domestic origin. The existing requirement that manufacture of the component take place in the United States would continue to apply, as well as the provision that states that if a component is determined to be of domestic origin, its entire cost may be used in calculating the domestic value of the rolling stock, regardless of the value of its individual subcomponents.

FTA recognized that the FAST Act amendments may produce significant hardship for two categories of recipients and manufacturers: (1) Recipients who entered into contracts or placed purchase orders against State schedules between October 1, 2015 and December 4, 2015 (i.e., the effective date of the Act and its enactment date, respectively); and (2) recipients who entered into contracts after December 4, 2015, as a result of solicitations for bids or requests for proposals that were advertised before December 4, 2015.

Under 49 U.S.C. 5323(j)(2)(A), the Secretary of Transportation may waive the Buy America requirements if the Secretary finds that applying the Buy America requirements would be “inconsistent with the public interest.” This function has been delegated to the FTA Administrator by 49 CFR 1.91, and section 661.7(b) of FTA's implementing regulation (49 CFR part 661) provides: “In determining whether the conditions exist to grant this public interest waiver, the Administrator will consider all appropriate factors on a case-by-case basis . . . . When granting a public interest waiver, the Administrator shall issue a detailed written statement justifying why the waiver is in the public interest. The Administrator shall publish this justification in the Federal Register, providing the public with a reasonable time for notice and comment of not more than seven calendar days.”

In a separate Notice accompanying the proposed policy statement (Docket FTA-2016-0020), FTA sought comment on a general public interest waiver for those affected parties (81 FR 20051, April 6, 2016). FTA proposed a public interest waiver for the following categories of contracts: (1) For contracts entered into between the FAST Act's effective date and date of enactment (i.e., from October 1, 2015 through December 4, 2015), the increased domestic content requirements for FY2018 and beyond would not apply, regardless of when the vehicles were delivered; and (2) for contracts entered into after December 4, 2015 as a result of solicitations for bids or requests for proposals that were advertised before December 4, 2015, the increased domestic content requirements for FY2018 and beyond would not apply, regardless of when the vehicles were delivered.

FTA received comments from 24 entities in Docket FTA-2016-0019 and comments from 14 entities in Docket FTA-2016-0020 from a broad cross-section of transit agencies, transit vehicle manufacturers, transit industry trade associations, the passenger vessel industry, an alliance of domestic manufacturing interests, compliance auditors, and the general public. The comments and proposals were diverse. The comments and questions can be categorized into the following primary categories:

Numerous commenters objected to the proposed policy statement's use of the delivery schedule as the determining factor. Some suggested that domestic content should be based on the solicitation date, which establishes the transit agency's domestic content expectations for prospective bidders, and allows suppliers to begin identifying domestic suppliers. They claimed that using the solicitation date of an invitation for bids or a request for proposals provides certainty to transit vehicle manufacturers, as transit agencies and transit vehicle manufacturers cannot forecast when a contract will be signed or when the vehicles will be delivered.

As an alternative to the solicitation date, a significant number of commenters proposed that FTA apply the domestic content requirements based upon the date a contract was entered into, for three primary reasons—consistency in vehicle components to avoid cardinal changes and increased pricing risks, reduction of administrative burdens, and consistency with the approach Congress used in implementing the last legislative increase in domestic content, which took place in 1987.

According to transit vehicle manufacturers, their vehicle bid quotes are based on the price of components known at the time the vehicle manufacturer receives the transit agency's solicitation and begins planning its supply chain by contacting potential suppliers. According to commenters, FTA's proposed policy had the potential of requiring three different component calculations based on a multi-year delivery schedule stemming from a single contract—one for vehicles delivered during FYs 2016-2017, another for FYs 2018-2019, and a third for FYs 2020 and beyond. This would require the vehicle manufacturer to identify new and potentially untried domestic suppliers for each successive configuration, integrate those new components in the midst of an ongoing production line, and incur the risk of price increases for those new components, as well as the possibility that the replacement or substitution of components might be characterized by some competitors as a “cardinal change.” Commenters also noted that a vehicle scheduled for delivery during the FY 2018-2019 time frame with a 65 percent domestic content requirement could find itself subject to a 70 percent domestic content requirement if delays and slippages beyond the control of the transit agency and the transit vehicle manufacturer resulted in the vehicle being delivered in FY 2020 or later. They requested a constant domestic content level that would exist for the duration of the production contract.

In addition, transit agencies expressed concerns regarding the administrative costs and burdens of performing three separate pre-award audits and three separate post-award audits on three potentially different vehicle configurations. As a term and condition of assistance, recipients of FTA funding must conduct a pre-award and post-delivery audit on every rolling stock model they procure. If domestic content was based on the delivery date, a transit agency with a multi-year delivery schedule faced the possibility that their vehicles could have three different levels of domestic content, which they would need to verify and confirm. In addition, unforeseen delays in production could result in a vehicle delivery occurring in a subsequent fiscal year with a higher domestic content obligation.

Several commenters pointed out that when Congress elevated the domestic content requirement from 50 percent to 60 percent in section 337 of Title III of the Surface Transportation and Urban Relocation Assistance Act of 1987 (Pub. L. 100-17) (STURAA), Congress provided that a vehicle's domestic content percentage would be based on the date the procurement contract was signed. Commenters suggested that FTA follow that approach.

Finally, one commenter requested clarification on the Notice's use of the term “advertised” when referring to “solicitations for bids or requests for proposals that were advertised before December 4, 2015.” FTA will address this request in the discussion of the public interest waiver, below.

FTA's Response:

Basing domestic content standards on the date the solicitation is made available to the public and potential bidders or on the date the contract is executed is contrary to language in the FAST Act. Using the date of solicitation would allow transit agencies to lock in a lower domestic content threshold for a contract that may be signed at a date when the higher domestic content standards are in effect, contrary to the statutory language. FTA believes Congress provided adequate advance notice in the FAST Act regarding the increase in domestic content, such that manufacturers and vendors have sufficient time to amend open solicitations for bids prior to the submission of bid proposals or the execution of a contract, and in fact, FTA is aware of transit agencies that have amended solicitations after they have been published. FTA also is aware that some vehicle manufacturers have indicated through a survey of pre-award audit data that they are already capable of meeting a higher domestic content threshold.

FTA does not find the request to follow the language used in earlier revisions to domestic content requirements to be persuasive. When Congress enacted STURRA in 1987, it amended the statutory language in the authorizing statute to increase the domestic content requirement from 50 percent to 55 percent effective October 1, 1989, and section 337(a)(1)(B) increased the domestic content from 55 percent to 60 percent effective October 1, 1991. Specifically, section 337(a)(2)(B) provided that the amendments shall not apply with respect to any supplier or contractor or any successor in interest or assignee which qualified under the provisions of section 165(b)(3) of the Surface Transportation Assistance Act of 1982 prior to the date of enactment of this Act under a contract entered into prior to April 1, 1992.

UMTA (FTA's predecessor agency) quickly published an implementing Notice that stated:

UMTA then published a Notice of Proposed Rulemaking to implement these new provisions (53 FR 32994, August 29, 1988), issuing its Final Rule on January 9, 1991 (56 FR 926). In the Final Rule, UMTA stated that it “believes that Congress intended to apply the increased domestic content requirements on an accelerated basis to firms entering the marketplace after April 2, 1987, and that it intended to grandfather existing firms that had complied with previous Buy America requirements regardless of the number of contracts or the product supplied (e.g., a bus versus a rail car).”

Although Congress had the precedent of the timing language used in STURAA when it drafted the FAST Act, Congress declined to reintroduce that language.

However, FTA finds the requests that the domestic content of a vehicle be fixed upon a single date that establishes the domestic content level for the duration of the contract to be persuasive, for the reasons articulated by the commenters. For those reasons, the applicable domestic content percentage will be based on the scheduled delivery date of the first production vehicle (i.e., the first vehicle intended to carry passengers in revenue service), final acceptance notwithstanding. This approach is closest to the FAST Act's statutory language and to Congress' clear direction. If the delivery date slips into a subsequent FY due to unforeseen circumstances, FTA will address those situations on a case-by-case basis. (Note that FTA is basing the domestic content requirement on the delivery date of the first production vehicle, rather than on the delivery date of a prototype unit, for several reasons. First, prototype units are constructed by the manufacturer for the limited purpose of design qualification testing, and may not necessary represent the finalized car design or car content. Second, prototypes are produced for testing purposes, and do not typically enter revenue (i.e., passenger) service in their prototype configuration. Finally, prototype units are delivered several months before the scheduled delivery date of the first production model and may not necessarily represent the final vehicle configuration, although the scheduled delivery date of the first production unit will undoubtedly control the components contained in the prototype unit. Consistent with the FAST Act, however, prototype units must contain an identical percentage of domestic content as the production units.)

This approach of using the date of first production vehicle delivery best reflects the statutory language of the FAST Act, while providing the consistency in componentry and relieving the need to conduct multiple pre-award and post-delivery audits raised as concerns by numerous commenters. The FAST Act's phased-in approach provides adequate notice to transit agencies and transit vehicle manufacturer suppliers of the domestic content requirements.

FTA received numerous comments regarding the effect of the higher domestic content provisions on options, joint procurements, and piggyback procurements. One commenter objected to extending the domestic content percentages throughout the life of a multi-year contract, including the exercise of any options, believing that Congress intended to increase domestic content as soon as possible, and that allowing the exercise of options would lock in a lower domestic content threshold well through FY 2020 and beyond. In contrast, several transit agencies and vehicle manufacturers proposed that the domestic content for rolling stock extend to the exercise of options for additional vehicles of identical manufacture, citing the benefits to rolling stock manufacturers and transit agencies, such as the predictability of pricing, the availability of components, consistency within the supply chain, and facilitating the ongoing manufacturing of rolling stock. They also cited the retroactive effect of such an approach, stating that applying a higher domestic content standard to a pre-existing contract that established a lower threshold was inconsistent with public interest and general principles of contract law.

One commenter sought clarity regarding the applicability of the proposed policy guidance to joint procurement contracts executed prior to the effective date of the FAST Act.

Several commenters objected to FTA's proposed guidance that would not allow recipients to piggyback on another agency's contract unless the vehicles being produced under the original contract met the domestic content requirements at the time the optioned vehicles are delivered.

FTA's Response:

FTA's proposed policy recognized the differences between the exercise of options by the original parties to a contract or a joint procurement between two or more purchasers and a single vehicle manufacturer, and piggyback procurements by third parties who were not parties to the original contract. With regard to the exercise of options, FTA is persuaded that the predictability of pricing and consistency within the supply chain outweighs any risks that the FAST Act is being circumvented. Therefore, FTA is modifying its final policy guidance to reflect that the date of the delivery of the first production vehicle under the contract controls the domestic content of all vehicles delivered under the contract, including vehicles delivered pursuant to the exercise of options. The exercise of options by the original parties to the contract or joint procurement establishes a predictable contract price for the buyers, and provides a standardized component list for the transit vehicle manufacturer, while at the same time it allows the transit vehicle manufacturer to keep its production line open, ensuring American jobs. However, only the original parties to a contract (including signatories to a joint procurement) are entitled to the benefits of exercising rights under that procurement.

FTA is not persuaded by the commenters who objected to FTA's limitations on the use of piggyback procurements during this transition period. The right to exercise an option does not create a contractual obligation until that contract is actually signed. Thus, assigning contract options to a third party will result in a new contract between that third party and the transit vehicle manufacturer, negating commenters' concerns that an increase in domestic content might be viewed as a “cardinal change.” Third parties seeking the assignment of procurement options (a/k/a “piggybacking”) have no contractual or statutory right to that option, and FTA considers that procurement to be a “new” contract and therefore subject to the applicable FAST Act standard based upon the scheduled delivery date of the first production vehicle under the new contract.

In its April 6 publication, FTA proposed to extend the elevated domestic content requirements to the subcomponents that constitute a component. FTA received relatively little comment on this specific provision. Several commenters proposed that a component's domestic content be based upon the date the component was offered in response to a solicitation, rather than upon the component's actual date of manufacture or the vehicle's intended delivery date. In support of their position, transit vehicle manufacturers said that they solicit bids for vendors for specific vehicle components. The prices submitted by those bidders are based upon quotes received from their suppliers and sub-suppliers, and the transit vehicle manufacturer has limited ability to leverage that bidder to increase the domestic content of its subcomponents. In addition, changing suppliers midway through a production schedule would be disruptive to production schedules, particularly if a manufacturer must switch to an untested supplier solely to meet a gradual increase in domestic content. In contrast, the association supporting domestic manufacturing expressed concerns that maintaining fixed domestic component and subcomponent levels throughout the life of the contract discourages new rolling stock suppliers from entering the market.

FTA's Response:

With the exception of components manufactured by the transit vehicle manufacturer itself, the vehicle manufacturer has little influence over the subcomponent content of a given component, and given the prevalence of multi-year vehicle delivery schedules, the effective date for a component's domestic content will be based upon the requirements in the contract. For solicitations advertised after the effective date of this Notice, however, the solicitation must include the appropriate statutory domestic content percentages for both components and subcomponents.

FTA is sensitive to the position that the elevated domestic content requirements eventually will encourage new entrants into the vehicle supply chain. All contracts signed after the FAST Act's effective date, including piggyback procurements and procurements off a state's procurement schedule, will be subject to the higher domestic content standards, resulting in more domestic suppliers entering the supply chain and the incorporation of more domestic content into vehicles funded with FTA financial assistance.

For purposes of Buy America, rolling stock includes train control, communication, and traction power equipment. 49 U.S.C. 5323(j)(2)(C). See also 49 CFR 661.11(t), (u), and (v). One commenter pointed out that the delivery of components on a construction contract differs from the delivery schedule of a rolling stock contract. Unlike rolling stock procurements where the transit agency is contracting for a fleet of homogenous transit vehicles, a construction contract may encompass a communication system, a traction power system, and a train control system, all of which may have differing construction schedules and varying component lists. Attempting to impose a domestic content based on when components are delivered to a job site, or the completion date of a particular construction segment may force the substitution of materials midway through a construction project, or in a worse-case scenario, may force the removal and replacement of components if delays push the completion of the contract into a subsequent fiscal year. The commenter proposed that the contracting date for the construction project would be a better determinant of the domestic content requirement, rather than one based on the installation date of each component or the completion of a particular portion of a construction contract.

FTA's Response:

FTA agrees with the commenter that there are significant differences between procurements for identical units of rolling stock, and a construction contract consisting of multiple deliverables, and therefore, the contracting award dates for train control, communication, and traction power systems will determine the contract's domestic content percentage. If a contract was signed in FY2016 or FY2017, the resulting components must consist of at least 60 percent domestically-manufactured components. If a construction contract is awarded during FY 2018 or FY 2019, the contract must include a domestic content percentage for that project that exceeds the 65 percent threshold. And if a construction contract is awarded in FY 2020 or beyond, the percentage of domestically-manufactured components must exceed 70 percent.

A transit vehicle rebuilder proposed that the FAST Act amendments should not apply to overhauls, rebuilds or remanufacture of any buses procured prior to the effective date of the FAST Act. The commenter also asked that the requirements be applied consistently throughout the duration of a contract so that the resulting vehicles will have consistent Buy America content. The commenter argues that the FAST Act amendments should not be interpreted in any manner that decreases transit agencies' abilities to complete their intended overhauls by forcing a higher standard of American content at the time of overhaul than when the bus was originally manufactured.

FTA's Response:

Consistent with the commenter's recommendation, FTA agrees that the domestic content in effect at the time the vehicle was delivered will apply to any future contracts for overhaul, rebuild, or remanufacturing projects, limited to the parties on the original contract.

FTA received two comments from the passenger ferry vessel industry and a ferry operator that proposed an implementation process for ferry vessels that based the domestic content requirement on the date of vessel contracting, rather than on the delivery date of the vessel. Commenters argued that it can be hard at the time of the contract's execution to anticipate with specificity exactly when the constructed ferry vessel will be finished, pass required regulatory inspections and sea trials, and be delivered to the customer. For vessels scheduled to be delivered over a multi-year program, they noted the difficulty and inefficiency in maintaining multiple component lists for identical vessels that would be delivered across different fiscal years.

FTA's Response:

FTA acknowledges that the long lead times associated with issuing design specifications, obtaining Coast Guard and other regulatory approval, bid solicitations, and construction of a ferry vessel exceed that required for other traditional types of rolling stock. Accordingly, for ferry vessels, the date on which a transit agency signs the procurement contract will govern the domestic content for all vessels delivered under that contract.

One commenter asked that FTA address the applicability of section 3011 of the FAST Act, which added 49 U.S.C. 5323(j)(5), allowing the inclusion of steel and iron produced in the United States and incorporated into a rolling stock frame or car shell outside the United States, provided that the frame or car shell is imported back into the United States for final assembly.

FTA's Response:

Consistent with the statutory provision, the cost of any domestic steel and iron may be included in the calculation of the transit vehicle's domestic content, provided that the average cost of the vehicle exceeds $300,000, as provided by the FAST Act. Manufacturers may include the cost of domestic steel and iron on vehicles produced after October 1, 2015, the effective date of the FAST Act.

In a Notice published concurrently with the proposed policy statement (81 FR 20051, April 6, 2016), FTA invited the public to comment on a proposed public interest waiver that would apply the current domestic content standard to rolling stock contracts entered into between October 1, 2015 (the effective date of the FAST Act) and December 4, 2015, (the date on which the Act was enacted), and for contracts entered into after December 4, 2015, as a result of solicitations for bids or requests for proposals that were advertised before December 4, 2015.

FTA received 14 comments on the proposed waiver from: A transit industry trade association, a passenger vessel trade group, several public transportation agencies, numerous transit vehicle manufacturers and remanufacturers, and Buy America consultants, all of whom supported the proposed waiver. Among the cited benefits of a waiver were the avoidance of additional costs to transit agencies that would have to rewrite and re-advertise existing solicitations to incorporate the new domestic content thresholds, the administrative costs to vehicle manufacturers who would need to identify and solicit new domestic suppliers, and most importantly, predictable delays in the acquisition of new transit vehicles, which would pose a disservice to transit riders.

The passenger vessel group asked that FTA extend the waiver to ferry vessel procurements for which the vessel design was substantially complete before the enactment of the FAST Act; vehicle remanufacturers asked that the waiver extend to contracts for rebuilds, overhauls, and remanufacturing entered into prior to the enactment date of the FAST Act; and several transit agencies and vehicle manufacturers asked that the waiver extend to contract options assigned to another transit agency if the contract was entered into prior to the FAST Act's enactment date.

FTA's Response:

Based on the foregoing discussion of the FAST Act's implementation and input from commenters, FTA believes that a request for a public interest waiver to address contracts signed before the date the FAST Act was enacted is reasonable, and is extending the waiver to contracts for ferry vessels and to contracts for the remanufacturing, rebuilding, and overhaul of a recipient's existing fleet. However, as stated previously, FTA will not extend pre-FAST Act domestic content percentages to options exercised by a third party after the effective date of the Act.

Further, to avoid the disruption of ongoing contract solicitations and to facilitate the delivery of transit vehicles to the public, FTA is extending the waiver to contract solicitations advertised on or after December 4, 2015, provided the contract is awarded within 60 days after the publication date of this Notice. If a solicitation was advertised (i.e., published or distributed to potential bidders in manner that constitutes constructive notice) on or after the enactment date of the FAST Act and the parties are unable to execute a contract within 60 days of this Notice, the solicitation must be amended to reflect the applicable domestic content standard that will be in effect when the first production vehicle is scheduled to be delivered. If compliance with this requirement would pose an undue hardship, FTA will evaluate requests for a waiver on a case-by-case basis.

A request for a public interest waiver should set forth the detailed justification for the proposed waiver, including information about the history of the procurement and the burden on the recipient and/or the industry in complying with the FAST Act. Public interest waivers should be narrowly tailored and FTA will not generally look favorably on waivers that provide for contracts that include the exercise of options for vehicles that will be delivered beyond FY2020. FTA will act expeditiously on public interest waiver requests that provide the information requested.

Individual and Joint Procurements of Buses and Railcars. For rolling stock contracts entered into on or after October 1, 2015, i.e., the effective date of the FAST Act, the applicable domestic content percentage under section 5323(j)(2)(C) will be based on the scheduled delivery date of the first production vehicle (i.e., the first vehicle intended to carry passengers in revenue service), final acceptance notwithstanding. Thus, if a recipient or group of recipients as part of a joint procurement enter into a contract for rolling stock on or after October 1, 2015, then the new FAST Act provisions applicable for the date of delivery of the first production vehicle shall apply. Accordingly, if the first production vehicle is delivered in FY2018 or FY2019, the domestic content must be more than 65 percent, and if the first production vehicle is delivered in FY2020 or beyond, the domestic content must be more than 70 percent. These delivery provisions apply to contracts entered into on or after October 1, 2015, unless a waiver is granted. If the delivery date of the first production vehicle is delayed such that it will be delivered in a year with a higher domestic content, FTA will address those situations on a case-by-case basis.

The FAST Act amendments do not apply to contracts entered into before October 1, 2015, even if the contract provides for the delivery of the first production vehicle after FY2017. For contracts entered into before October 1, 2015, all vehicles delivered under the original contract base order and any properly exercised options by recipients who are direct parties to the contract may contain a domestic content of more than 60 percent, per the pre-FAST Act requirements. Recipients who are not direct parties to a contract executed before October 1, 2015, however, may not exercise assigned options (a/k/a “piggybacking”) on such contracts.

Procurements of Ferry Vessels. Due to the long lead time in establishing vessel design specifications, obtaining Coast Guard certifications and other regulatory approval, and the bid solicitation and review process that exceeds that required for other traditional types of rolling stock, the date on which a transit agency signs the vessel contract will govern the domestic content for all vessels delivered under that contract. Therefore, for vessel contracts signed during FYs 2016 or 2017, the vessels must contain a minimum of 60 percent domestic content; contracts signed in FYs 2018 or 2019 must require no less than 65 percent domestic content; and contracts signed in FY 2020 or beyond must mandate a domestic content of no less than 70 percent.

Train Control, Communication and Traction Power Equipment. For purposes of Buy America, rolling stock includes train control, communication, and traction power equipment. 49 U.S.C. 5323(j)(2)(C). See also 49 CFR 661.11(t), (u), and (v). The domestic content requirement in effect on the date a contract was signed for train control, communication, and traction power equipment will control. If the contract is signed in FY2016 or FY2017, the contract shall require an overall domestic content that exceeds 60 percent; if a contract is signed in FYs 2018 or 2019, the contract must include an overall domestic content percentage that exceeds 65 percent; and if a contract is signed in FY2020 or beyond, the domestic content must exceed 70 percent.

State Purchasing Schedules. Some recipients purchase rolling stock from a State purchasing schedule. A State purchasing schedule is an arrangement that a State has established with multiple vendors in which those vendors agree to provide essentially an option to the State and its subordinate governmental entities and others it might include in its programs, to acquire specific property or services in the future at established prices. Because the purchasing schedule does not commit the State to procuring a minimum number of vehicles, a “contract” does not exist until a State, recipient or subrecipient enters into a purchase order with a vendor listed on the schedule.

Therefore, for purchase orders placed against State purchasing schedules before October 1, 2015, for the delivery of rolling stock in FY2018 and beyond, the increased domestic content requirements will not apply. For purchase orders placed against State schedules on or after October 1, 2015, for rolling stock that will be delivered in FY 2016 or 2017, the domestic content requirement must exceed 60%. For purchase orders placed against State schedules for rolling stock that will be delivered in FYs 2018 or 2019, the domestic content must exceed 65%, and for purchase orders placed against State schedules for rolling stock that will be delivered in FY 2020 or beyond, the domestic content must exceed 70%.

Calculation of Domestic Content. FTA will adjust the calculation for determining whether a component is of domestic origin under 49 CFR 661.11 to accommodate the increase in domestic content for FY2018 and beyond. Currently under 49 CFR 661.11(g), “for a component to be of domestic origin, more that 60 percent of the subcomponents of that component, by cost, must be of domestic origin, and the manufacture of the component must take place in the United States. If, under the terms of this part, a component is determined to be of domestic origin, its entire cost may be used in calculating the cost of domestic content of an end product.”

Thus, for vehicles to be delivered in FY2018 or 2019, for a component to be of domestic content, more than 65 percent of the subcomponents of that component, by cost, must be of domestic origin, and for FY2020 or beyond, more than 70 percent of the subcomponents of the component must be of domestic origin. The requirement that manufacture of the component take place in the United States still applies. Additionally, if a component is determined to be of domestic origin, its entire cost may be used in calculating the cost of content of an end product.

Cost of Domestic Steel and Iron for Rolling Stock Frame or Car Shell. Section 3011 of the FAST Act, which added 49 U.S.C. 5323(j)(5), allows domestic content to include steel and iron produced in the United States and incorporated into a rolling stock frame or car shell outside the United States, provided that the frame or car shell is imported back into the United States for final assembly. Consistent with the statutory provision, the cost of any domestic steel and iron may be included in the calculation of the transit vehicle's domestic content, provided that the average cost of the vehicles exceeds $300,000, as provided by the FAST Act. Manufacturers may include the cost of domestic steel and iron on vehicles produced after October 1, 2015, the effective date of the FAST Act.

FTA is issuing two general public interest waivers to address two categories of recipients and manufacturers: (1) Recipients who entered into contracts or placed purchase orders against State schedules between October 1, 2015 and December 4, 2015; and (2) recipients who have entered into contracts after December 4, 2015, as a result of solicitations for bids or requests for proposals that were advertised before December 4, 2015. In addition, FTA is issuing a third public interest waiver for recipients who solicited contracts on or after December 4, 2015, provided they enter into a contract within 60 days of publication of this Notice.

Under 49 U.S.C. 5323(j)(2)(A), the Administrator may waive the Buy America requirements if the Administrator finds that applying the Buy America requirements would be inconsistent with the public interest. “In determining whether the conditions exist to grant a public interest waiver, the Administrator will consider all appropriate factors on a case-by-case basis . . . When granting a public interest waiver, the Administrator shall issue a detailed written statement justifying why the waiver is in the public interest. The Administrator shall publish this justification in the Federal Register, providing the public with a reasonable time for notice and comment of not more than seven calendar days.” 49 CFR 661.7(b).

Public interest waiver for contracts entered into between October 1, 2015 and December 4, 2015. FTA grants a general public interest waiver for contracts entered into between the FAST Act's effective date and date of enactment (i.e., between October 1, 2015 and December 4, 2015). For these contracts, the increased domestic content requirements for FY2018 and beyond will not apply, regardless of when the first production vehicle is delivered. However, consistent with FTA's policy statement above, parties to the contracts may exercise options under the contract, but recipients will not be permitted to piggyback on the contracts.

Public interest waiver for contracts entered into after December 4, 2015 as a result of solicitations advertised before December 4, 2015. FTA grants a general public interest waiver for contracts entered into after December 4, 2015 as a result of solicitations for bids or requests for proposals that were advertised (i.e., published or distributed to potential bidders in a manner that constitutes constructive notice) before December 4, 2015. Under these circumstances, the increased domestic content requirements for FY2018 and beyond will not apply, regardless of when the first production vehicle is delivered. However, consistent with FTA's policy statement above, parties to the contracts may exercise options under the contract, but recipients will not be permitted to piggyback on the contracts.

Public interest waiver for contract solicitations advertised on or after December 4, 2015 and entered into within 60 days of publication of this notice. To avoid the disruption of ongoing contract solicitations and to facilitate the delivery of transit vehicles to the public, FTA is extending the waiver to contract solicitations advertised on or after December 4, 2015, and entered into within 60 days after the publication date of this Notice. If a solicitation was advertised (i.e., published or distributed to potential bidders in a manner that constitutes constructive notice) after the enactment date of the FAST Act and the parties are unable to execute a contract within 60 days of this Notice, the solicitation must be amended to reflect the applicable domestic content standard that will be in effect when the first production vehicle is scheduled to be delivered. If compliance with this requirement would pose an undue hardship, FTA will evaluate requests for a waiver on a case-by-case basis.

Recipients may apply to FTA for individual public interest waivers for contracts that do not fall within the scope of a general public interest waiver. A request for a public interest waiver should set forth the detailed justification for the proposed waiver, including information about the history of the procurement and the burden on the recipient and/or the industry in complying with the FAST Act. Public interest waivers should be narrowly tailored and FTA will not generally look favorably on waivers that provide for contracts that include the exercise of options for vehicles that will be delivered beyond FY2020. FTA will act expeditiously on public interest waiver requests that provide the information requested.

Because the statute is self-effectuating, the changes are effective upon the FAST Act's enactment. FTA will be initiating a subsequent rulemaking updating 49 CFR part 661 to reflect these changes; however, today's Policy Statement and Waiver represents FTA's implementation of the FAST Act provisions during this interim period.

The snapper-grouper fishery of the South Atlantic includes species in the other porgies complex and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

The recreational ACL for the other porgies complex is 106,914 lb (48,495 kg), round weight. In accordance with regulations at 50 CFR 622.193(w)(2)(i), if the recreational ACL is met, or is projected to be met, the NMFS Assistant Administrator (AA) will file a notification with the Office of the Federal Register to close the recreational sector for the remainder of the fishing year. Recreational landings in 2016 from the Southeast Fisheries Science Center indicate that the recreational ACL has already been harvested. As a result, the recreational sector for the other porgies complex will be closed effective 12:01 a.m., local time, September 3, 2016.

During the closure, the bag and possession limits for species in the other porgies complex in or from the South Atlantic EEZ are zero. The recreational sector for the other porgies complex will reopen on January 1, 2017, the beginning of the 2017 recreational fishing year.

The Regional Administrator for the NMFS Southeast Region has determined this temporary rule is necessary for the conservation and management of the South Atlantic other porgies complex and is consistent with the Magnuson-Stevens Act and other applicable laws.

This action is taken under 50 CFR 622.193(w)(2)(i) and is exempt from review under Executive Order 12866. These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment. This action responds to the best scientific information available.

The AA finds that the need to immediately implement this action to close the recreational sector for the other porgies complex constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule implementing the AM has already been subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because there is a need to immediately implement this action to protect the species in the other porgies complex. Prior notice and opportunity for public comment would require time and would potentially allow the recreational sector to further exceed its ACL.

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

Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq.) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.) governing the harvest of NALB and BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27(e) describes the NALB annual quota recommended by ICCAT and the annual NALB quota adjustment process. Section 635.27(a) subdivides the ICCAT-recommended U.S. BFT quota among the various domestic fishing categories, per the allocations established in the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) (71 FR 58058, October 2, 2006), as amended by Amendment 7 to the 2006 Consolidated HMS FMP (Amendment 7) (79 FR 71510, December 2, 2014), and describes the annual BFT quota adjustment process. NMFS is required under ATCA and the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest the ICCAT-recommended quotas.

The NALB quota implementation and quota adjustment processes, along with the BFT quota adjustment process, were previously analyzed in Amendment 7, which included a Final Environmental Impact Statement, Final Regulatory Impact Review, Final Regulatory Flexibility Analysis, and Final Social Impact Statement, published in August 2014. ICCAT conducted another BFT stock assessment update in 2014, and, after considering the scientific advice in the stock assessment, adopted a recommendation regarding western Atlantic bluefin tuna management that increases the U.S. bluefin tuna quota for 2015 and 2016 (ICCAT Recommendation 14-05: “Recommendation by ICCAT Amending the Supplemental Recommendation by ICCAT Concerning the Western Atlantic BFT Rebuilding Program”). NMFS published a final rule to implement that baseline annual U.S. BFT quota on August 28, 2015 (“BFT Quota Rule,” 80 FR 52198), and prepared an Environmental Assessment, Regulatory Impact Review, and Final Regulatory Flexibility Analysis for that action.

As described in the final rule implementing Amendment 7, since 1998, ICCAT has adopted recommendations regarding the NALB fishery. A multiyear management measure for northern albacore tuna was first adopted in 2003, setting the Total Allowable Catch (TAC) at 34,500 mt. ICCAT's Standing Committee on Research and Statistics (SCRS) assessed the northern albacore tuna stock in 2009 and concluded that the stock continues to be overfished with overfishing occurring, recommending a level of catch of no more than 28,000 mt to meet ICCAT management objectives by 2020. In response, in 2009, ICCAT established the NALB rebuilding program via Recommendation 09-05, effective for 2010 and 2011, setting a 28,000-mt TAC and including several provisions to limit catches by individual ICCAT Contracting Parties (for major and minor harvesters) and reduce the amount of unharvested quota that could be carried forward from one year to the next, from 50 percent to 25 percent of a Contracting Party's initial catch quota. Subsequent ICCAT NALB Recommendations 11-04 and 13-05 (both entitled “Supplemental Recommendation by ICCAT Concerning the North Atlantic Albacore Rebuilding Program”) maintained the TAC at 28,000 mt for 2012 through 2016 and contained specific recommendations regarding the NALB rebuilding program, including allocation of the annual TAC among the European Union, Chinese Taipei, the United States, and Venezuela. The U.S. quota for 2012 through 2016 has been 527 mt, annually. These recommendations limit Japanese northern albacore tuna catches to 4 percent in weight of its total Atlantic bigeye tuna longline catch, and limits the catches of other ICCAT parties to 200 mt. Recommendation 13-05 also specifies that quota adjustments for a given year's underharvest or overharvest must be made within 2 years from the subject year (i.e., adjustments based on 2015 catches would be made during or before 2017). The maximum underharvest can be carried forward from one year to the next remains at 25 percent of a Contracting Party's initial catch quota.

The annual U.S. NALB quota of 527 mt is codified at § 635.27(e) and will remain in effect until changed (for instance, if a new ICCAT NALB TAC recommendation is adopted). Because ICCAT adopted TACs for 2014, 2015, and 2016 in Recommendation 13-05, NMFS currently anticipates that these annual base quotas would be in effect through 2016, but they will remain in place unless and until a new NALB TAC and catch limits are adopted by ICCAT.

Amendment 7 established the process by which NMFS adjusts the U.S. annual NALB quota for any previous year's underharvest. NMFS makes such adjustments consistent with ICCAT limits and when complete catch information for the prior year is available and finalized.

Based on NMFS' best available information as of July 21, 2016, the total 2015 NALB catch is 247.70 mt, which is 293.61 mt less than the 2015 adjusted quota (i.e., 527 mt plus 14.31 mt of 2014 underharvest carried forward to 2015, totaling 541.31 mt). Thus, the underharvest for 2015 is 293.61 mt. Per the 2013 ICCAT recommendation, only 25 percent of the total 2015 U.S. quota, or 131.75 mt, of that underharvest may be carried forward to the 2016 fishing year. Consistent with the process established in Amendment 7, the adjusted 2016 NALB quota is 527 mt plus 131.75 mt, totaling 658.75 mt.

Pursuant to Amendment 7, NMFS augments the Reserve category quota to the extent that underharvest from the prior year's adjusted U.S. BFT quota is available. NMFS makes such adjustments consistent with ICCAT limits and when complete catch information for the prior year is available and finalized. Consistent with the BFT quota regulations, NMFS may allocate any portion of the Reserve category quota for inseason or annual adjustments to any fishing category quota pursuant to regulatory determination criteria described at § 635.27(a)(8), or for scientific research.

NMFS implemented ICCAT Recommendation 14-05 in the BFT quota final rule in August 2015 (80 FR 52198, August 28, 2015). That rulemaking implemented Recommendation 14-05, which included a 2,000-mt western BFT TAC of 2,000 mt (for 2015 and 2016) and the recommended annual U.S. baseline quota of 1,058.79 mt. The total annual U.S. quota, including the 25 mt to account for bycatch related to pelagic longline fisheries in the Northeast Distant gear restricted area (NED) is 1,083.79 mt. The maximum underharvest that a Contracting Party may carry forward from one year to the next is 10 percent of its total quota.

The baseline annual U.S. BFT quota of 1,058.79 mt is codified at § 635.27(a) and will remain in effect until changed (for instance, if a new ICCAT western BFT TAC recommendation is adopted). Because ICCAT adopted TACs for 2015 and 2016 in Recommendation 14-05, NMFS currently anticipates that these annual baseline quotas would be in effect through 2016, but they will remain in place unless and until a new western BFT TAC and catch limits are adopted by ICCAT.

Based on NMFS' best available information as of July 21, 2016, the total 2015 BFT catch is 896.30 mt. This total catch includes 876.80 mt of landings and 19.50 mt of dead discards, which includes the best available estimate of 14.60 mt of dead discards for the pelagic longline fishery and the observed dead discards of 4.90 mt for the purse seine fishery. The total catch of 896.30 mt is 282.36 mt less than the quota available for 2015 landings and dead discards (i.e., 1,083.79 mt plus 94.87 mt of 2014 underharvest carried forward to 2015, totaling 1,178.66 mt). Thus, the underharvest for 2015 is 282.36 mt. Per the 2014 ICCAT recommendation, only 10 percent of the total 2015 U.S. quota, or 108.38 mt, of that underharvest may be carried forward to the 2016 fishing year. The codified Reserve category quota is 24.8 mt. Consistent with the process established in Amendment 7, NMFS augments the Reserve category quota with 108.38 mt in this action. Effective January 1, 2016, NMFS adjusted the Reserve category quota for 2016 to 92.2 mt by reallocating 101.4 mt of Purse Seine quota to the Reserve category (based on 2015 catch by Purse Seine category participants and provisions for calculating Purse Seine allocations in Amendment 7) and also transferring 34 mt of Reserve category quota to the Longline category (81 FR 19, January 4, 2016). Thus, as of the effective date of this action (September 1, 2016), the adjusted 2016 Reserve category quota will be 200.58 mt (i.e., 92.2 mt plus 108.38 mt).

The Assistant Administrator for NMFS (AA) has determined that this final rule is consistent with the Magnuson-Stevens Act, the 2006 Consolidated Atlantic HMS FMP and its amendments, ATCA, and other applicable law.

The AA finds that it would be unnecessary and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:

NMFS solicited and accepted public comment on the NALB quota implementation and quota adjustment processes, along with the BFT quota adjustment process, as part of the Amendment 7 rulemaking. Comments on these provisions in response to the proposed Amendment 7 rulemaking were generally supportive and were addressed in the Response to Comments section of the Amendment 7 final rule. (See comments 18, 19, and 105 at 79 FR 71530-71531 and 71553). This action applies the formula noticed to the public in the earlier action (Amendment 7), using the best available data regarding 2015 catch and underharvest and calculating allowable underharvest consistent with ICCAT recommendations. The Amendment 7 rulemaking specifically provided prior notice of, and accepted public comment on, these formulaic quota adjustment processes and the manner in which they occur. The application of this formula in this action does not have discretionary aspects requiring additional agency consideration and thus public comment for this action would not and could not result in any changes.

There is good cause under U.S.C. 553(d)(3) to waive the 30-day delay in effective date and make the rule effective upon publication in the Federal Register. The fisheries for NALB and BFT began on January 1, 2016. NMFS monitors NALB and BFT annual catch against the available quota. Delaying the effective date of these quota adjustments would unnecessarily complicate the management of the NALB and BFT fisheries, which rely on management flexibility to respond quickly to fishery conditions to ensure that fishermen have a reasonable opportunity to catch the available quota. For example, under the NALB fishery closure regulations, NMFS must close the fishery when the annual fishery quota is reached. Closure of the fishery based only on the baseline (codified) quota versus the adjusted NALB quota would preclude the fishery from harvesting NALB that are legally available consistent with the ICCAT recommendations and the 2006 Consolidated HMS FMP, as amended. Adjusting the BFT Reserve category as soon as possible provides NMFS the flexibility to transfer quota from the Reserve to other fishing categories inseason after considering the regulatory determination criteria, including fishery conditions at the time of the transfer. NMFS could not appropriately adjust the annual quotas for 2016 sooner because the data needed to make the determination only became available in late July and additional time was needed for agency analysis and consideration of the data.

Additionally, to prevent confusion and potential overharvests, these adjustments should be in place as soon as possible to allow the impacted sectors to benefit from any subsequent quota adjustments to the fishing categories, give them a reasonable opportunity to catch available quota, and provide them the opportunity for planning operations accordingly.

This action is being taken under §§ 635.27(e) and 635.27(a)(10) and is exempt from review under Executive Order 12866.

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

Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable.

This rule is accessible via the Internet at the Office of the Federal Register Web site at https://www.federalregister.gov. Background information and documents are available at the Pacific Fishery Management Council's Web site at http://www.pcouncil.org/. Copies of the final environmental impact statement (FEIS) for the Groundfish Specifications and Management Measures for 2015-2016 and Biennial Periods Thereafter are available from Chuck Tracy, Executive Director, Pacific Fishery Management Council (Council), 7700 NE Ambassador Place, Portland, OR 97220, phone: 503-820-2280.

The Pacific Fishery Management Council (Council)—in coordination with Pacific Coast Treaty Indian Tribes and the States of Washington, Oregon, and California—recommended changes to groundfish management measures at its June 21-28, 2016, meeting. Specifically, the Council recommended taking a portion of the Pacific ocean perch (POP) initially deducted from the annual catch limit (ACL) and making it available to the mothership (MS) sector; a trip limit increase for black rockfish in the limited entry fixed gear (LEFG) and open access (OA) fisheries in northern California; and trip limit reductions in the OA sablefish daily trip limit (DTL) fishery north of 36° N. lat.

As part of biennial harvest specifications and management measures, ACLs are set for non-whiting groundfish species, deductions are made “off-the-top” from the ACL to account for various sources of mortality (including scientific research activities) and the remainder, the fishery harvest guideline, is allocated among the various groundfish fisheries. The limited availability of overfished species that can be taken as incidental catch in the Pacific whiting fishery, particularly darkblotched rockfish, POP, and canary rockfish, led NMFS to implement sector-specific allocations for these species to the Pacific whiting fisheries. If the sector-specific allocation for a non-whiting species is reached, NMFS may close one or more of the at-sea sectors automatically, per regulations at § 660.60(d).

At the June, 2016 meeting, MS and catcher/processor (C/P) sectors requested more POP to accommodate higher than anticipated harvest and prevent closure of the fishery prior to harvesting their allocations of Pacific whiting.

At the start of 2016, the MS and C/P sectors of the Pacific whiting fishery were allocated 7.2 mt and 10.2 mt of POP respectively, per regulations at § 660.55(c)(1)(i)(B). According to the best fishery information available at the June 2016 meeting, POP bycatch in the MS sector was approximately double 2016 POP bycatch projections. At that time, best available information regarding bycatch rates of POP in the MS sector indicated that if those rates continued, only 53 percent (38,246 mt) of the Pacific whiting allocation would be harvested by the end of the 2016 fishery. Therefore, the Council recommended that NMFS monitor fishery harvest of Pacific whiting and POP relative to their respective at-sea sector allocations, update projections of Pacific whiting allocation attainment based on new, updated POP bycatch rates, and if necessary, transfer some POP that would otherwise go unharvested to either the MS or C/P sectors as needed.

Current projections by the Northwest Fishery Science Center indicate that approximately 3.7 mt of POP off-the-top deductions for scientific research would remain unharvested through the end of the year. As of August 11, 2016, the C/P sector has only harvested approximately 4.1 percent (0.41 mt) of its 2016 POP allocation indicating the C/P sector has sufficient POP allocation to cover their Pacific whiting harvests. However, approximately 70 percent (5.0 mt) of the total MS sector POP allocation has been harvested and only approximately 47 percent (34,256.46 mt) of the Pacific whiting allocation has been harvested. Using the most recent catch data through August 11, 2016, NMFS projects that at current rates, the MS sector will only harvest approximately 49 percent (35,486.35 mt) of its total Pacific whiting allocation (74,415 mt) before reaching the 7.2 mt POP allocation. Therefore, consistent with the Council's June recommendation to take into account the best estimates of the amount of POP available and the updated bycatch rates in the MS and C/P fisheries, NMFS is transferring 3.0 mt of POP to the at-sea sectors.

This rule transfers 3.0 mt of POP that is expected to go unharvested from the scientific research off-the-top deduction to the MS sector. This transfer increases the MS sector POP allocation from 7.2 mt to 10.2 mt. The remaining amount in the off-the-top deduction for scientific research is anticipated to go unharvested (0.7 mt) but is not transferred at this time to buffer for uncertainty in the estimates of POP harvest in scientific research. This inseason action increases the POP amount available to the MS sector, and is expected to provide opportunity for the MS sector to obtain their entire Pacific whiting allocation (72,415 mt). Transfer of POP to the MS sector, when combined with projected impacts from all other sources, is not expected to result in greater impacts to POP than the 2016 ACL. This action is also not expected to increase impacts to other overfished species from those originally projected through the end of the year.

Black rockfish are caught in nearshore commercial and recreational fisheries. Black rockfish is a healthy stock that co-occurs with nearshore overfished rockfish species (e.g. canary rockfish and yelloweye rockfish). Catch of black rockfish is managed, in part, to keep catch of co-occurring overfished species within the management targets for the nearshore fishery and the state of California. In 2016, reduced fishing effort as a result of poor weather and ocean conditions has significantly impacted catch rate of black rockfish in the area between 42° N. lat., and 40°10′ N. lat. for the LEFG and OA black rockfish commercial fisheries. The State of California reported 2016 black rockfish catch to be approximately 5 percent of the total allocation (19.9 mt of the 420 mt allocated). To provide the opportunity to harvest a larger portion of their allocation the Council recommended and NMFS is implementing an increase in the bimonthly trip limits for the LEFG fishery and the OA fishery between 42° N. lat., and 40°10′ N. lat. from “6,000 lbs/2 months which, no more than 1,200 lbs may be species other than black rockfish” to “7,000 lbs/2 months of which, no more than 1,200 lbs may be species other than black rockfish.” The increased trip limits described above will be effective in periods 5 and 6, beginning September 1.

Reduced opportunities in other fisheries (e.g. crab and salmon) in 2016 have resulted in higher than normal effort in the open access sablefish fishery north of 36° N. lat. Reports from the PacFIN Quota Species Monitoring (QSM) Best Estimate Report (BER) dated June 18, 2016 indicate actual landings have been approximately double 2016 projections in the fishery. The Council's groundfish advisory panel (GAP) recommended a reduction in trip limits to reduce effort in order to avoid exceeding 2016 sablefish allocations to the fishery. The Council's GMT projected landings at the current rate of effort were 112 percent to 117 percent of the total OA allocation, through the end of the year. At its June 2016 meeting, the Council recommended and NMFS is implementing a trip limit adjustment from “300 lbs/day, or one landing per week of up to 850 lb, not to exceed 1,700 lb/2 months” to “300 lbs/day, or one landing per week of up to 750 lbs, not to exceed 1,500 lbs/2 months.” Model projections through the end of the year with these adjustments show a total landing of 98 percent of the 2016 OA allocation. The reduced trip limits described above will be effective in periods 5 and 6, beginning September 1.

This final rule makes routine inseason adjustments to groundfish fishery management measures, based on the best available information. This document also serves as notice of an automatic action, based on the best available information. Both are consistent with the PCGFMP and its implementing regulations.

This action is taken under the authority of 50 CFR 660.60(c) and (d) and 660.140(a)(3) and is exempt from review under Executive Order 12866.

The aggregate data upon which these actions are based are available for public inspection at the Office of the Administrator, West Coast Region, NMFS, during business hours.

NMFS finds good cause to waive prior public notice and comment on the revisions to groundfish management measures under 5 U.S.C. 553(b) because notice and comment would be impracticable and contrary to the public interest. Also, for the same reasons, NMFS finds good cause to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(3), so that the regulatory changes in this final rule may become effective September 1, 2016.

At its June 2016 meeting, the Council recommended that NMFS consider a transfer of POP to the MS and C/P sectors, as needed based on the most recent fishery information. The Council recommended that the transfer be implemented as quickly as possible once the amount of POP, that would otherwise go unharvested in scientific research activities, was estimated. Updated catch information from scientific research activities became available in early August. There was not sufficient time after the June 2016 Council meeting or after research catch information was available to undergo proposed and final rulemaking before this action needs to be in effect. For the action implemented in this final rule, affording the time necessary for prior notice and opportunity for public comment would prevent transfer of POP to the MS sector until later in the season, or potentially eliminate the possibility of doing so during the 2016 calendar year entirely, and is therefore impracticable. Failing to transfer POP to the MS sector in a timely manner could result in unnecessary restriction of fisheries if the MS sector exceeded their allocations. Providing the MS sector fishermen an opportunity to harvest their limits of Pacific whiting without interruption and, when combined with harvest from other sectors, without exceeding the POP ACL, allows harvest as intended by the Council, consistent with the best scientific information available. The Pacific whiting fishery contributes a large amount of revenue to the coastal communities of Washington and Oregon and this change allows continued harvest of Pacific whiting while continuing to prevent ACLs of overfished species and the allocations for target species from being exceeded.

The Council also recommended commercial trip limit changes for black rockfish and sablefish. These changes are based on the best available information, consistent with the PCGFMP and its implementing regulations. At the June Council meeting the Council recommended that increase to black rockfish trip limits be implemented as quickly as possible during the two-month cumulative limit period and that the decrease to sablefish trip limits be implemented as quickly as possible, by the start of the next cumulative limit period. There was not sufficient time after that meeting to draft this document and undergo proposed and final rulemaking before these actions need to be in effect. For the actions to be implemented in this final rule, affording the time necessary for prior notice and opportunity for public comment would prevent NMFS from managing fisheries using the best available science to approach, without exceeding, the ACLs for federally managed species in accordance with the PCGFMP and applicable law. The adjustments to management measures in this document affect commercial fisheries off Washington, Oregon, and California. These increases to trip limits must be implemented as quickly as possible during the two-month cumulative limit period to allow OA fixed gear fishermen an opportunity to harvest higher limits of black rockfish without exceeding the ACL. The decrease to sablefish trip limits must be implemented by the start of the next two-month cumulative limit period, September 1, to prevent exceedance of the ACL and allow year-round fishing opportunities for fishermen. It would be contrary to public interest to delay implementation of these changes until after public notice and comment, because making the regulatory changes by September 1, allows harvest as intended by the Council, consistent with the best scientific information available. The increase to black rockfish trip limits allows additional harvest in fisheries that are important to coastal communities while continuing to prevent the black rockfish ACL from being exceeded. The decrease to sablefish trip limits allows continued harvest in a fishery that is important to coastal communities while continuing to prevent sablefish ACL from being exceeded.

For the actions to be implemented in this final rule, affording the time necessary for prior notice and opportunity for public comment would prevent NMFS from managing fisheries using the best available science to prevent overfishing in accordance with the PCGFMP and applicable law.

Delaying these changes would also keep management measures in place that are not based on the best available information. Such delay would impair achievement of the PCGFMP goals and objectives of managing for appropriate harvest levels while providing for year-round fishing and marketing opportunities.

Accordingly, for the reasons stated above, NMFS finds good cause to waive prior notice and comment and to waive the delay in effectiveness.

For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (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 fourth seasonal apportionment of the Pacific halibut bycatch allowance specified for the deep-water species in the GOA has been determined to be 0 metric tons (mt). This apportionment was established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016) and reapportionment (81 FR 45423, July 14, 2016), for the period 1200 hours, A.l.t., September 1, 2016, through 1200 hours, A.l.t., October 1, 2016.

In accordance with § 679.21(d)(6)(i), the Administrator, Alaska Region, NMFS, has determined that the fourth seasonal apportionment of Pacific halibut bycatch allowance specified for deep-water species by vessels using trawl gear in the GOA has been reached. Consequently, NMFS is prohibiting directed fishing for the deep-water species by vessels using trawl gear in the GOA. The species and species groups that comprise the deep-water species fishery include sablefish, rockfish, deep-water flatfish, rex sole, and arrowtooth flounder. This closure does not apply to fishing by vessels participating in the cooperative fishery in the Rockfish Program for the Central GOA.

After the effective date of this closure the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

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 closure of the deep-water species fishery by vessels using trawl gear in the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 25, 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 § 679.21 and is exempt from review under Executive Order 12866.