Federal Register Vol. 81, No.174,

This rule makes technical corrections to, and finalizes, the interim final rule that was published by the Department of Justice (Department) on December 19, 2014, and that went into effect on December 26, 2014. See 79 FR 76081. The interim final rule added 2 CFR part 2800, which implements and supplements parts of 2 CFR part 200 for the Department of Justice, and removed 28 CFR parts 66 and 70, which were superseded by 2 CFR part 200.

The Department of Justice received no comments in response to its portion of the interim final rule. Therefore, the interim final rule is finalized with no substantive changes. The Department has made minor technical changes to make clear that where the Department's implementing rule incorporates by reference other provisions of law, it does so by general reference, which incorporates future amendments to those provisions.

In accordance with the Paperwork Reduction Act of 1995 (PRA), see 44 U.S.C. 3506, the Department of Justice reviewed its final rule and determined that there are no new collections of information contained therein. However, the OMB uniform guidance in 2 CFR part 200 may have a negligible effect on burden estimates for existing information collections, including recordkeeping requirements for non-Federal entities that receive Federal awards.

The Regulatory Flexibility Act (RFA) requires an agency that is issuing a final rule to provide a final regulatory flexibility analysis or to certify that the rule will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 605(b). This rule finalizes the interim final rule implementing for the Department of Justice the OMB guidance at 2 CFR part 200. The OMB guidance consolidated and updated several guidance documents codified and published in various places into one omnibus document. The consolidation and updates are designed to streamline the Federal grant process, and should, as a whole, substantially simplify the requirements and cost principles applicable to many federally funded entities. Thus, the rule will not have a significant economic impact on a substantial number of small entities.

This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), Principles of Regulation, and in accordance with Executive Order 13563, “Improving Regulation and Regulatory Review,” section 1(b), General Principles of Regulation.

The Department of Justice has determined that this rule is a not “significant regulatory action” under Executive Order 12866, section 3(f), and accordingly this rule has not been reviewed by the Office of Management and Budget.

Further, Executive Orders 12866 and 13563 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 effects, environmental effects, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department has assessed the costs and benefits of this regulation and believes that the regulatory approach selected maximizes net benefits.

The rule issued by the Department of Justice concerns matters relating to “grants, benefits, or contracts,” 5 U.S.C. 553(a)(2), and therefore is exempt from the requirement of prior notice and comment. Thus, the Department, along with other Federal grant-making agencies, published an interim final rule that was effective on December 26, 2014. The Department received no comments on its interim final rule.

Generally, those agencies that are subject to the Administrative Procedure Act (APA) are required to delay the effective date of their final regulations by 30 days after publication. See 5 U.S.C. 553(d). The interim final rule issued by the Department that went into effect on December 26, 2014, concerned matters relating to “grants, benefits, or contracts,” 5 U.S.C. 553(a)(2), and therefore was exempt from the requirement of a 30-day delay in the effective date. This rule finalizes, with non-substantive technical changes, the interim final rule that is already in effect, and the final rule will take effect upon publication in the Federal Register.

Section 202 of the Unfunded Mandates Reform Act of 1995 (Unfunded Mandates Act), 2 U.S.C. 1532, requires that covered agencies prepare a budgetary impact statement before promulgating a rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. If a budgetary impact statement is required, section 205 of the Unfunded Mandates Act, 2 U.S.C. 1535, also requires covered agencies to identify and consider a reasonable number of regulatory alternatives before promulgating a rule. OMB determined that the joint interim-final rule would not result in expenditures by State, local, and tribal governments, or by the private sector, of $100 million or more in any one year. See 79 FR 75877. Thus, a budgetary impact statement was not required for the interim final rule, and is not required here.

The Department determined, as required by Executive Order 13132, “Federalism”, that the joint interim final rule did not have any federalism implications. This final rule similarly has no federalism implications.

Accordingly, the interim final rule published by the Department of Justice on December 19, 2014, adding 2 CFR part 2800, and removing 28 CFR parts 66 and 70, is adopted as a final rule with the following changes:

DOE published the July 2016 final rule in the Federal Register on July 1, 2016, which adopted the test procedures for LED lamps in Appendix BB to support the implementation of labeling provisions by the Federal Trade Commission, as well as the ongoing general service lamps rulemaking, which includes LED lamps. 81 FR 43403. The test procedure for standby power adopted in the July 2016 final rule references the test standard published by the International Electrotechnical Commission (IEC), titled “Household electrical appliances—Measurement of standby power,” IEC 62301 (Edition 2.0, 2011-01). Therefore, to incorporate by reference IEC 62301 for appendix BB, DOE attempted to amend § 430.3 to add appendix BB to the list of approved appendices in existing paragraph (p)(5). However, the amendatory instruction was incorrectly written and appendix BB was not added. This final rule corrects § 430.3(p)(5) to include appendix BB.

The regulatory reviews conducted for this rulemaking are those set forth in the July 2016 final rule that originally codified DOE's adopted test procedures for integrated LED lamps. The test procedures in the July 2016 final rule became effective August 1, 2016.

Pursuant to the Administrative Procedure Act, 5 U.S.C. 553(b), DOE has determined that notice and prior opportunity for comment on this rule are unnecessary and contrary to the public interest. Neither the error nor the correction in this document affect the substance of the rulemaking or any of the conclusions reached in support of the final rule. For these reasons, DOE has also determined that there is good cause to waive the 30-day delay in effective date.

For the reasons stated in the preamble, DOE amends part 430 of title 10 of the Code of Federal Regulations by making the following correcting amendment:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Fokker Services B.V. Model F28 Mark 0070 and 0100 airplanes. The NPRM published in the Federal Register on May 13, 2016 (81 FR 29800) (“the NPRM”). The NPRM was prompted by an aileron-wing flutter analysis finding that, when a hydraulic aileron actuator is not powered while at least one aileron flutter damper is inoperative (latent failure), the maximum speed currently defined in the AFM is insufficient to meet the required safety margin. The NPRM proposed to require revising the AFM to include procedures to follow in the event of a hydraulic system failure and abnormal flight control behavior. We are issuing this AD to ensure that the flightcrew has procedures to follow in the event of a hydraulic system failure and abnormal flight control behavior. If not corrected, this condition could lead to aileron flutter and possible reduced control of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0078, dated May 6, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Fokker Services B.V. Model F28 Mark 0070 and 0100 airplanes. The MCAI states:

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

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD 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.

We reviewed Fokker Manual Change Notification—Operational Documentation MCNO-F100-066, dated December 1, 2014. The service information contains amendments to applicable AFMs that introduce an additional step in the abnormal procedures for a hydraulic system failure and abnormal flight control behavior. 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 8 airplanes of U.S. registry.

We also estimate that it would take about 1 work-hour per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $680, or $85 per product.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 737-600, -700, -700C, -800, and -900 series airplanes. The NPRM published in the Federal Register on June 21, 2016 (81 FR 40208) (“the NPRM”). The NPRM was prompted by an evaluation by the design approval holder (DAH) indicating that the aft pressure bulkhead is subject to widespread fatigue damage (WFD). The NPRM proposed to require repetitive inspections of the aft pressure bulkhead web for any cracking, crack indications, discrepant fastener holes, and corrosion; and corrective actions if necessary. We are issuing this AD to detect and correct cracks in the aft pressure bulkhead web, which could result in an uncontrolled decompression of the fuselage.

We gave the public the opportunity to participate in developing this AD. We have considered the comments received. Boeing, the Airline Pilots Association International, and United Airlines supported the NPRM.

Aviation Partners Boeing stated that accomplishing the supplemental type certificate (STC) ST00830SE does not affect compliance with the actions specified in the NPRM.

We agree with the commenter. We have redesignated paragraph (c) of the NPRM as (c)(1) and added a new paragraph (c)(2) to this final rule to state that installation of STC ST00830SE does not affect the ability to accomplish the actions required by this final rule. Therefore, for airplanes on which STC ST00830SE is installed, a “change in product” Alternative Method of Compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

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

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

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

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

We reviewed Boeing Alert Service Bulletin 737-53A1248, Revision 2, dated October 14, 2015. The service information describes procedures for low frequency eddy current, or high frequency eddy current, and detailed inspections of the bulkhead web for cracking, crack indications, discrepant fastener holes, and corrosion. 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 680 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

We have received no definitive data that enables us to provide cost estimates for the on-condition actions specified in this AD.

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

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

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:

We have received a report of an incident involving a Model G-1159A (G-III) airplane. During approach, the right MLG failed to extend during normal or alternative extension procedures. We have determined that the MLG door actuator end cap fitting is subject to fatigue cracking, allowing for the depletion of the combined (left) and utility hydraulic system fluid and the nitrogen emergency blowdown system. This condition, if not corrected, could result in failure of the combined (left) hydraulic system (all phrases) to provide adequate hydraulic pressure and failure of the MLG to extend when commanded. We are issuing this AD to correct the unsafe condition on these products.

We reviewed the following temporary revisions (TRs), which provide procedures for replacing MLG door actuator end cap fittings, and establish life limits for the end cap fittings.

• Gulfstream G300 Maintenance Manual, TR 32-2, dated April 29, 2016.

• Gulfstream G300 Maintenance Manual, TR 5-3, dated April 29, 2016.

• Gulfstream G350 Maintenance Manual TR 32-1, dated April 22, 2016.

• Gulfstream G350 Maintenance Manual TR 5-2, dated April 22, 2016.

• Gulfstream G400 Maintenance Manual TR 32-2, dated April 29, 2016.

• Gulfstream G400 Maintenance Manual TR 5-3, dated April 29, 2016.

• Gulfstream G450 Maintenance Manual TR 32-1, dated April 22, 2016.

• Gulfstream G450 Maintenance Manual TR 5-2, dated April 22, 2016.

• Gulfstream G500 Maintenance Manual TR 32-1, dated May 20, 2016.

• Gulfstream G500 Maintenance Manual TR 5-3, dated May 20, 2016.

• Gulfstream G550 Maintenance Manual TR 32-1, dated May 20, 2016.

• Gulfstream G550 Maintenance Manual TR 5-3, dated May 20, 2016.

• Gulfstream II Maintenance Manual TR 32-1, dated April 15, 2016.

• Gulfstream II Maintenance Manual TR 5-3, dated April 15, 2016.

• Gulfstream IIB Maintenance Manual TR 32-3, dated April 15, 2016.

• Gulfstream IIB Maintenance Manual TR 5-3, dated April 15, 2016.

• Gulfstream III Maintenance Manual TR 32-1, dated April 15, 2016.

• Gulfstream III Maintenance Manual TR 5-2, dated April 15, 2016.

• Gulfstream IV Maintenance Manual TR 32-2, dated April 29, 2016.

• Gulfstream IV Maintenance Manual TR 5-7, dated April 29, 2016.

• Gulfstream V Maintenance Manual TR 32-2, dated May 20, 2016.

• Gulfstream V Maintenance Manual TR 5-3, dated May 20, 2016.

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

This AD requires repetitively replacing the MLG door actuator end cap fittings and revising the maintenance or inspection program, as applicable, to establish life limits for MLG door actuator end cap fittings.

An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because fatigue cracking of the MLG door actuator end cap fitting could result in depletion of the combined (left) and utility hydraulic system fluid and the nitrogen emergency blowdown system, failure of the combined (left) hydraulic system (all phrases) to provide adequate hydraulic pressure, and failure of the MLG to extend when commanded. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2016-9070 and Directorate Identifier 2016-NM-118-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

We estimate that this AD affects 1,409 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Model A300 B4-203 and A300 B4-2C airplanes. The NPRM published in the Federal Register on May 23, 2016 (81 FR 32256) (“the NPRM”). The NPRM was prompted by cracks found on pylon side panels (upper section) at rib 8. The NPRM proposed to require a detailed inspection for crack indications of the pylon side panels; an HFEC inspection to confirm any crack indications; and repair of any cracking, or modification of the pylon side panels, and repetitive inspections and repair if necessary. We are issuing this AD to detect and correct cracking of the pylon side panels. Such cracking could result in pylon structural failure and in-flight loss of an engine.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0201, dated October 7, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A300 B4-203 and A300 B4-2C 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-2016-6671.

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

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD 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.

Airbus has issued Service Bulletin A300-54-0075, Revision 04, dated May 26, 2015. The service information describes procedures for an inspection for crack indications of the pylons, a HFEC inspection to confirm cracking, modification of the pylon side panels, and repair if necessary.

Airbus has also issued Service Bulletin A300-54-0081, dated August 11, 1993. This service information describes installation of a doubler on the left pylon 1 and right pylon 2, on pylon side panels (upper section) at Rib 8.

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 4 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Model A318, A319, and A320 series airplanes. The NPRM published in the Federal Register on November 27, 2015 (80 FR 74045) (“the NPRM”).

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2014-0259, dated December 5, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A318, A319, and A320 series airplanes. The MCAI states:

Related investigative actions include a special detailed inspection of external fuselage skin panel for any cracking, and measurement of crack length and remaining thickness. Corrective actions include repair or modification of the fuselage skin panel. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-5814.

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.

Airbus requested that we revise paragraph (i) of the NPRM to add Airbus Service Bulletin A320-53-1281, Revision 02, including Appendix 01, dated October 9, 2015.

United Airlines also requested that we revise paragraph (i) of the NPRM to add Airbus Service Bulletin A320-53-1281, Revision 02, including Appendix 01, dated October 9, 2015, and provide credit for Airbus Service Bulletin A320-53-1281, Revision 01, dated December 1, 2014. United Airlines explained that Airbus Service Bulletin A320-53-1281, Revision 02, including Appendix 01, dated October 9, 2015, includes numerous configuration additions.

For the reasons stated by the commenter, we agree to revise this AD to include Airbus Service Bulletin A320-53-1281, Revision 02, including Appendix 01, dated October 9, 2015. Airbus Service Bulletin A320-53-1281, Revision 02, including Appendix 01, dated October 9, 2015, includes, among other things, configuration changes, new configurations, and revision of the Manufacturer Serial Numbers (MSNs), but adds no new actions. We also included Airbus Service Bulletin A320-53-1281, Revision 01, dated December 1, 2014, in paragraph (j) of this AD, as credit for certain actions performed before the effective date of this AD.

Airbus requested that we revise the NPRM to add a paragraph that allows for any corrective action provided by Airbus. Airbus stated that in case of deviation during service information embodiment, the only solution to cover the deviation for the customer is to ask for an alternative method of compliance (AMOC). Airbus included the following example, which allows any corrective action provided by Airbus:

United Airlines requested that we revise the NPRM to clarify that the actions that are required for compliance (RC) are limited to the steps in paragraphs 3.C. and 3.D. of Airbus Service Bulletin A320-53-1287, dated July 29, 2014; Airbus Service Bulletin A320-53-1281, Revision 02, including Appendix 01, dated October 9, 2015; and Airbus Service Bulletin A320-53-1281, Revision 01, dated December 1, 2014. The commenter noted that paragraph 3.D. contains no test requirements.

We agree with the request, although, as the commenter noted, paragraph 3.D. of the referenced service information does not include any test requirements. We have therefore revised paragraphs (g) and (i) of this AD to limit the requirements to paragraph 3.C., “Procedure,” of the service information.

United Airlines requested that we clarify whether the inspections specified in the NPRM and Airbus Service Bulletin A320-53-1287, dated July 29, 2014, override the inspection methods and intervals defined in structures repair manual (SRM) 53-21-11 PB 101, and whether the terminating action in paragraph (i) of the proposed AD terminates the inspections in SRM 53-21-11 PB 101 following rework. The commenter stated that SRM 53-21-11 PB 101 defines different inspection methods, threshold, and repetitive intervals.

We agree that clarification is necessary. We recognize that there may be a conflict between the inspections specified in this AD and SRM 53-21-11 PB 101. The requirements of this AD were developed to address a known unsafe condition and prevail over the actions of previously developed service information provided by a manufacturer. We have made no changes to this AD in this regard.

United Airlines requested that we revise paragraph (g)(3) of the proposed AD to clarify the “limits” of detected damage. Paragraph (g)(3) of the proposed AD refers to damage that exceeds the limits defined in Airbus Service Bulletin A320-53-1287, dated July 29, 2014. United Airlines noted that this limit relates to the remaining skin thickness as defined by SRM 53-21-11 PB 101, but the meaning of “remaining thickness out of limits” is inconclusive. United Airlines stated that the remaining skin thickness following a blend out could become a Category ‘B’ repair with subsequent inspections or a Category ‘C’ repair, eventually requiring doubler repair. United Airlines stated that Airbus Service Bulletin A320-53-1287, dated July 29, 2014, does not give instructions to accomplish a doubler repair if the remaining thickness is within SRM 53-21-11 PB 101 limits. United Airlines stated that it would not be wise to install an external doubler (unless necessary) if the remaining skin thickness is “within limits.” The commenter therefore proposed that we clarify the “limit” as an allowable rework (blend out) that does not require repair (doubler installation).

We agree that clarification is necessary. If Subtask 531287-832-002-001 of Airbus Service Bulletin A320-53-1287, dated July 29, 2014, is performed, and no crack is found, and the measurement of the remaining thickness of fuselage skin exceeds certain limits, then Airbus Service Bulletin A320-53-1287, dated July 29, 2014, specifies contacting Airbus for repair instructions. The corresponding requirement in paragraph (g)(3) of this AD, requires that those repairs be done using a method approved by the FAA, EASA, or Airbus's EASA Design Organization Approval. Repair instructions are established based on the inspection results shared with Airbus, which may vary on a case-by-case basis. We have made no changes to this final rule in this regard.

United Airlines requested that we revise paragraph (g)(1) of the proposed AD to include damage on the “fuselage skin or skin repair (if present)” for the required detailed inspection. United Airlines explained that it experienced several issues of skin chafing prior to the release of Airbus Service Bulletin A320-53-1287, dated July 29, 2014; as a result, some airplanes have needed doubler repairs due to skin wear beyond remaining thickness allowed. The commenter stated that because repairs may be present, it will not be possible to inspect the skin in the chafing area.

For the reasons stated by the commenter, we agree to include previously repaired areas for the inspection required by paragraph (g)(1) of this AD. We have revised paragraph (g)(1) of this AD accordingly.

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 Airbus Service Bulletin A320-53-1281, Revision 02, including Appendix 01, dated October 9, 2015; and Airbus Service Bulletin A320-53-1287, dated July 29, 2014. The service information describes procedures for a detailed inspection for damage (including chafing marks) on the fuselage skin at FR 34 between STR 43 LH and RH sides, and applicable related investigative and corrective actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 642 airplanes of U.S. registry.

We also estimate that it would take about 12 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts would cost about $90 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $712,620, or $1,110 per product.

In addition, we estimate that any necessary follow-on actions would take about 21 work-hours and require parts costing $3,550, for a cost of $5,335 per product. We have no way of determining the number of aircraft that might need this action.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Saab AB, Saab Aeronautics Model SAAB 2000 airplanes. The NPRM published in the Federal Register on May 13, 2016 (81 FR 29807) (“the NPRM”). The NPRM was prompted by a report that on some airplanes, during the paint removal process for repainting the airplane, the basic corrosion protection (anodizing and primer) coating was sanded down to bare metal on the aluminum skin panels, and the bare metal might not have been treated correctly for corrosion prevention. The NPRM proposed to require an inspection of structural components of the airplane for any damaged protective coating; inspections of those areas for pitting corrosion, if necessary; a thickness measurement to determine if there is reduced skin thickness, if necessary; and repair, if necessary. We are issuing this AD to detect and correct damaged protective coatings. This condition could result in pitting corrosion damage; and reduced metal thickness, which could result in reduced static and fatigue strength of the airplane's structural parts.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2014-0160, dated July 9, 2014 (Correction: July 9, 2014) (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Saab AB, Saab Aeronautics Model SAAB 2000 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-2016-6668.

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

We reviewed the relevant data and determined that air safety and the public interest require adopting this AD 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.

We reviewed Saab Service Bulletin 2000-51-002, Revision 01, dated May 23, 2014. This service information describes procedures for an inspection of structural components of the airplane for any damaged protective coating; inspections of those areas for pitting corrosion; a thickness measurement to determine if there is reduced skin thickness; and repair. 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 8 airplanes of U.S. registry.

We also estimate that it takes about 20 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 $13,600, or $1,700 per product.

In addition, we estimate that any necessary follow-on actions will take about 45 work-hours, for a cost of $3,825 per product. We have no way of determining the number of aircraft that might need these actions. We have received no definitive data that will enable us to provide cost estimates for the parts cost of the follow-on actions specified in this AD.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 767-200, -300, and -400ER series airplanes. The NPRM published in the Federal Register on January 4, 2016 (81 FR 24) (“the NPRM”). The NPRM was prompted by multiple reports of uncommanded escape slide inflation. The NPRM proposed to require modifying the escape slide regulator valves of the forward-entry door, forward-service door, aft-entry door, and aft-service door, and as applicable, modifying the escape slide regulator valves of the mid-entry door and mid-service door. We are issuing this AD to prevent out-of-tolerance trigger mechanism components (sector and sear) in the escape slide regulator valves, which can produce insufficient trigger engagement and reduced pull force values, possibly leading to uncommanded deployment of the slide during normal airplane maintenance or operation. This condition could result in injury to passengers and crew, damage to equipment, and the slide becoming unusable in an emergency evacuation.

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. Air Astana, Air Line Pilots Association International (ALPA), and United Airlines supported the NPRM.

American Airlines (AAL) and Boeing requested that we clarify that the NPRM is applicable to the regulator valve associated with the escape slide assembly and not the slide door. The commenters pointed out that without clarification, the regulator valve could be misconstrued to be associated with the door system pressure cylinder assembly or the emergency power assist system (EPAS).

We agree to clarify the references to the escape slide regulator valve. We have revised the preamble in this final rule and paragraphs (e) and (g) of this AD to refer to the escape slide regulator valve.

Air New Zealand (ANZ) requested that we revise paragraph (g) of the proposed AD or add an additional paragraph to clarify that operators are required only to modify escape slide regulator valves that have not been previously modified as specified in UTC Aerospace Systems Service Bulletin 130104-25-432 or 4A3939-25-434. ANZ stated that paragraph (g) of the proposed AD would require all escape slide regulator valves on affected airplanes to be removed and modified as specified in Boeing Special Attention Service Bulletin 767-25-0548, Revision 1, dated April 23, 2015. ANZ also pointed out that if before or during the accomplishment of the actions specified in Boeing Special Attention Service Bulletin 767-25-0548, Revision 1, dated April 23, 2015, a determination could be made (by reviewing records or checking the part markings on the girt bar) that some of the escape slide regulator valves are already modified, as specified in UTC Aerospace Systems Service Bulletin 130104-25-432; or Service Bulletin 4A3939-25-434, then no additional work should be required on the modified escape slide regulator valves.

We agree that escape slide regulator valves that have already been modified do not need to be removed and modified again. Boeing Service Bulletin 767-25-0548, dated November 5, 2014, included in paragraph (h) of this AD, references UTC Aerospace Systems Service Bulletin 130104-25-432; and Service Bulletin 4A3939-25-434 for the modification. As allowed by the phrase, “unless already done,” in paragraph (f) of this AD, if the requirements of this AD have already been accomplished, this AD does not require that those actions be repeated. Therefore, paragraph (g) this AD has not been changed in this regard.

ALPA indicated its full support for the intent of the NPRM, but requested that we reduce the proposed 42-month compliance time for the modification of the escape slide regulator valves. ALPA pointed out that the risk of an uncommanded deployment is high and believes that the compliance time should be reduced in the interest of safety. ALPA provided no specific new compliance time.

We disagree with the request to reduce the 42-month compliance time. In developing an appropriate compliance time, we considered the safety implications, parts availability, and normal maintenance schedules for timely accomplishment of modification of the escape slide regulator valves. Further, we arrived at the proposed compliance time with operator and manufacturer concurrence. Additionally, ALPA did not provide any additional data to support a shorter compliance time. In consideration of all of these factors, we determined that the compliance time, as proposed, represents an appropriate interval in which the escape slide regulator valves can be modified in a timely manner within the fleet, while still maintaining an adequate level of safety. Most ADs, including this one, permit operators to accomplish the requirements of an AD at a time earlier than the specified compliance time; therefore, an operator may choose to modify the escape slide regulator valves before the 42-month compliance time. If additional data are presented that would justify a shorter compliance time, we may consider further rulemaking on this issue. We have not changed this AD in this regard.

AAL requested that we revise references included in UTC Aerospace Systems Service Bulletin 130104-25-432, dated August 11, 2014. AAL stated that UTC Aerospace Systems Service Bulletin 130104-25-432, dated August 11, 2014, contains internal references to the UTC Aerospace Systems Component Maintenance Manual (CMM) that are incorrect and reference an old revision of the UTC Aerospace Systems CMM with different paragraph references.

We agree that the references included in UTC Aerospace Systems Service Bulletin 130104-25-432, dated August 11, 2014, are incorrect. Since the specific references included in UTC Aerospace Systems Service Bulletin 130104-25-432, dated August 11, 2014, are not required for compliance with this AD, we have not changed the AD in this regard; however, we have identified this discrepancy to Boeing and UTC Aerospace Systems.

Aviation Partners Boeing stated that the installation of winglets per STC ST01920SE does not affect the accomplishment of the manufacturer's service instructions.

We agree with the commenter that STC ST01920SE does not affect the accomplishment of the manufacturer's service instructions. Therefore, the installation of STC ST01920SE does not affect the ability to accomplish the actions required by this AD. We have not changed 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 Boeing Special Attention Service Bulletin 767-25-0548, Revision 1, dated April 23, 2015. The service information describes procedures for modifying the escape slide regulator valves of the forward-entry door, forward-service door, aft-entry door, aft-service door, mid-entry door, and mid-service door. The modification includes replacing the existing trigger mechanism sector and sear of the escape slide regulator valve with new trigger mechanism sector and sear. 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 302 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.

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:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Jetmore Municipal Airport, Jetmore, KS.

On June 16, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E airspace extending upward from 700 feet above the surface at Jetmore Municipal Airport, Jetmore, KS (81 FR 39217) FAA-2016-7002. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Z dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Z, airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace extending upward from 700 feet above the surface within a 6-mile radius of Jetmore Municipal Airport, Jetmore, KS, to accommodate new standard instrument approach procedures. Controlled airspace is needed for the safety and management of IFR operations at the airport.

Class E airspace areas are published in paragraph 6005 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (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); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5(a). This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exists that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part, A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes controlled airspace at Lakota Municipal Airport, Lakota, ND.

On June 8, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to establish Class E Airspace extending upward from 700 feet above the surface at Lakota Municipal Airport, Lakota, ND (81 FR 36815) Docket No. FAA-2016-6115. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Z dated August 6, 2016, and effective September 15, 2015, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.9Z, airspace Designations and Reporting Points, dated August 6, 2016, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.9Z lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 establishes Class E airspace extending upward from 700 feet above the surface within a 6-mile radius of Lakota Municipal Airport, Lakota, ND, to accommodate new standard instrument approach procedures. Controlled airspace is needed for the safety and management of IFR operations at the airport.

Class E airspace areas are published in paragraph 6005 of FAA Order 7400.9Z, dated August 6, 2016, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (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); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exists that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

On August 22, 2016, U.S. Customs and Border Protection (CBP) published in the Federal Register (81 FR 56477) an Interim Final Rule (CBP Dec. 16-11) document, entitled “Investigation of Claims of Evasion of Antidumping and Countervailing Duties.” As published, the interim final regulation contains an error in the text of the definition of “evade or evasion” in § 165.1. The definition should be the same as the statutory definition found in section 421 of the Trade Facilitation and Trade Enforcement Act of 2015 (19 U.S.C. 1517(a)(5)), but a comma was inadvertently omitted.

The effective date for the interim final rule (CBP Dec. 16-11), published August 22, 2016 (81 FR 56477), remains August 22, 2016. Written comments must be submitted on or before October 21, 2016.

For reasons stated in the preamble, 19 CFR part 165 is amended by making the following correcting amendment:

The Directorate of Defense Trade Controls (DDTC), U.S. Department of State, administers the International Traffic in Arms Regulations (ITAR) (22 CFR parts 120 through 130). On June 3, 2015, the Department of State published a rule (80 FR 31525) proposing to amend the International Traffic in Arms Regulations (ITAR) by revising key definitions, creating several new definitions, and revising related provisions, as part of the President's Export Control Reform (ECR) initiative. After review of the public comments on the proposed rule, the Department published an interim final rule (81 FR 35611, June 3, 2016) implementing several of the proposed revisions and additions, with an additional comment period until July 5, 2016. After reviewing the public comments to the interim final rule, the Department further amends the ITAR by revising the definition of “retransfer” in § 120.51, adding a new paragraph (f) to § 125.1, revising § 126.16(a)(1)(iii) and § 126.17(a)(1)(iii), revising § 126.18(d)(1), and revising § 130.2.

The following changes are made to the ITAR with this final rule: (i) Revisions to the definition of “retransfer” in § 120.51 to clarify that temporary transfers to third parties and releases to same-country foreign persons are within the scope of the definitions; (ii) addition of a new paragraph (f) in § 125.1 to mirror the new sections of the ITAR in §§ 123.28 and 124.1(e) detailing the scope of licenses; (iii) revising § 126.16(a)(1)(iii) and § 126.17(a)(1)(iii) to reflect the definitions of reexport and retransfer in the Defense Trade Cooperation Treaties with Australia and the United Kingdom, respectively, and to make appropriate revisions to the definitions of reexport in § 120.19 and retransfer in § 120.51 to reflect that these definitions do not apply in the treaty context; (iv) revisions to § 126.18(d)(1) to clarify that the provisions include all foreign persons who meet the definition of regular employee in § 120.39; and (v) revisions to § 130.2 to ensure that the scope of the Part 130 requirements does not change due to the revised and new definitions. The remaining definitions published in the June 3, 2015 proposed rule (80 FR 31525) and not addressed in the June 3, 2016 interim final rule or this final rule, will be the subject of separate rulemakings and the public comments on those definitions will be addressed therein.

One commenter stated that § 120.17 (a)(1) is ambiguous and could lead to misinterpretation as to whether the transfer of a defense article to a foreign person within the United States would be considered an export. The Department notes that a transfer of a defense article to a foreign person in the United States is not an export, unless it results in a release of technical data under § 120.17(a)(2), is a defense article covered under § 120.17(a)(3), or involves an embassy under § 120.17 (a)(4). The Department confirms that simply allowing a foreign person in the United States to possess a defense article does not require authorization under the ITAR unless technical data is revealed to that person through the possession, including subsequent inspection, of the defense article, or that person is taking the defense article into an embassy.

One commenter stated that § 120.17(a)(2) implies that only transfers to foreign persons that occur in the United States constitute an export and asked the Department to add “or abroad” to include transfers to foreign persons outside of the United States. The Department does not accept the comment. One of the improvements of the new definitions for export, reexport, and retransfer is that they more specifically delineate the activities described by each term. The Department confirms that the transfer of technical data to a foreign person is always a controlled activity that requires authorization from the Department. The shipment of technical data, in physical, electronic, verbal, or any other format, from the United States to a foreign country is an export under § 120.17(a)(1). The release of technical data to a foreign person in the United States is an export under § 120.17(a)(2). The release of technical data to a foreign person in a foreign country is a retransfer under § 120.51(a)(2), if the person is a national of that country, or a reexport under § 120.19(a)(2), if the person is a dual or third country national (DN/TCN). The shipment of technical data, in physical, electronic, verbal, or any other format, from one foreign country to another foreign country is a reexport under § 120.19(a)(1). Finally, the shipment of technical data, in physical, electronic, verbal, or any other format, within one foreign country is a retransfer under § 120.51(a)(1).

One commenter asked why paragraph (b) in §§ 120.17 and 120.19 is not within paragraph (a)(2) of each definition, as that paragraph deals with releases of technical data. The Department did not include the text of paragraph (b) in §§ 120.17 and 120.19 as a note because it warrants being included in the ITAR as regulatory text. The Department notes that paragraph (b) applies to all of paragraph (a) and not just to paragraph (a)(2). The Department did not include paragraph (b) in § 120.51 because a retransfer will only involve same country nationals. A release to a dual or third country national will be an export or reexport.

One commenter asked if theoretical or potential access to technical data is a release. The Department confirms that theoretical or potential access to technical data is not a release. As stated in the preamble to the interim final rule however, a release will have occurred if a foreign person does actually access technical data, and the person who provided the access is an exporter for the purposes of that release.

One commenter asked how extensively an exporter is required to inquire as to a foreign national's past citizenships or permanent residencies. The Department confirms that any release to a foreign person is a controlled event that requires authorization to all countries where that foreign person holds or has held citizenship or is a permanent resident. The Department also confirms that it will consider all circumstances surrounding any unauthorized release and will assess responsibility pursuant to its civil enforcement authority based on the relative culpability of all of the parties to the transaction.

One commenter asked if an exporter is required to inquire into citizenships a foreign national has renounced. The Department confirms that any release to a foreign person is a controlled event that requires authorization to all countries where that foreign person has held citizenship.

One commenter asked which citizenship controls (for purposes of DDTC authorizations) apply where a foreign national has multiple citizenships. The Department confirms that any release to a foreign person is a controlled event that requires authorization to all countries where that foreign person holds or has held citizenship or is a permanent resident, and that such authorization or authorizations must authorize all applicable destinations.

One commenter asked if DDTC considers an individual's country of birth sufficient to establish a particular nationality for that individual for ITAR purposes (i.e., will DDTC consider a person born in a particular country as a national of that country, even if the person does not hold citizenship or permanent residency status in his/her country of birth?). The Department confirms that in circumstances where birth does not confer citizenship in the country of birth, it does not confer citizenship or permanent residency in that country for purposes of the ITAR. One commenter noted that the DDTC Agreement Guidelines refer to the country of origin or birth, in addition to citizenship, as a consideration when vetting DN/TCNs. The Department has updated the Agreement Guidelines consistent with the interim final rule.

Several commenters asked whether a temporary retransfer to a separate legal entity within the same country, such as for the purpose of testing or to subcontractors or intermediate consignees, is within the scope of § 120.51. The Department confirms that such a temporary retransfer is a temporary change in end-user or end-use and is within the scope of § 120.51. The Department revises § 120.51 to clarify this point by adding “. . . or temporary transfer to a third party. . . .”

Several commenters asked that the Department remove “letter of explanation” from §§ 123.28 and 124.1(e), stating that foreign parties do not have access to “letters of explanation” and other side documents which may have been submitted by the U.S. applicant, and which may impact the scope of the authorization. The Department does not accept the comments to the extent that they recommend a change to the regulatory text. However, the Department acknowledges the importance of the foreign parties being informed of the scope of the authorization relevant to their activities and will address the commenters' concerns in the licensing process.

One commenter noted that, based upon the consolidation of § 124.16 into § 126.18, the reference to § 124.16 under § 126.18(a) is no longer accurate. The Department notes that amendatory instruction #16 in the interim final rule makes this amendment.

One commenter asked if use of the word reexport in new § 126.18(d) means that only employees who have the same nationality as their employer can receive technical data directly from, or interact with, the U.S. exporter, with attendant responsibility on the employer who reexports such technical data to its DN/TCN. The Department confirms that, to the extent that a DN/TCN employee of an authorized end user, foreign signatory, or consignee acts as an authorized representative of that company, the provision of technical data by an authorized U.S. party to the foreign company through the DN/TCN employee is a reexport from the foreign company to the DN/TCN employee that may be authorized under § 126.18.

One commenter noted that new § 126.18(d)(4) will require individual DN/TCNs to sign an non-disclosure agreement (NDA) unless their employer is a signatory to a relevant agreement, meaning that authorized DN/TCNs will have to sign an NDA for access to articles covered by a license. The commenter further noted that the exemptions progressively introduced for DN/TCNs were motivated at least in part by concerns among U.S. allies about domestic anti-discrimination law. The Department does not accept this comment. All activities that could be authorized under § 124.16 remain available under § 126.18(d). If a foreign party is not able to utilize the expansion of the authorization to non-agreement-related reexports due to its domestic law, the other provisions of § 126.18 remain available.

One commenter asked whether the requirement of § 126.18(d)(5) that authorized individuals are “[n]ot the recipient of any permanent transfer of hardware” is intended to limit authorized recipients of temporary hardware transfers or to require, in the case of reexports to an individual person, the separate authorization by name or controlling entity on the agreement. The Department intended that permanent retransfers of hardware not be authorized under § 126.18(d). Eligible individuals may receive temporary hardware transfers or receive hardware on a temporary basis. If a permanent retransfer to an individual is intended, that person should be separately authorized by name or controlling entity on the agreement.

One commenter noted that in §§ 125.4(b)(9) and 126.18(d), the defined term regular employee is modified. Revised § 125.4(b)(9)(iii) requires that an employee, including foreign person employees, be “directly employed by” a U.S. person. Revised § 126.18(d)(1), refers to “bona fide regular employees directly employed by the foreign business entity . . . .” The commenter requested that the Department clarify the use of the term “regular employee” and state clearly if conditions apply beyond those stated in the definition of “regular employee” set forth in § 120.39. The Department accepts the comment in part. The Department also confirms that a regular employee is any party who meets the definition set forth in § 120.39 and that § 126.18(d) is updated to clarify that the control relates to regular employees as defined in § 120.39. However, in § 125.4(b)(9), the term “directly employed” is used to distinguish employees of a U.S. person from employees of related business entities, such as foreign subsidiaries. The Department confirms that all regular employees of the U.S. person, under § 120.39, are included within the authorization, including an individual in a long-term contractual relationship hired through a staffing agency.

One commenter noted that § 125.4(a) excludes use of the § 125.4(b) exemptions for § 126.1 countries and stated that it would be advantageous for the U.S. government if U.S. exporters could utilize § 125.4(b)(9) in the context of U.S. persons or foreign person employees supporting the U.S. government in a § 126.1 country. The Department does not accept the comment. Exports by private companies to § 126.1 countries require individual authorizations, unless authorized under § 126.4. Changes to § 126.4 to account for transfers in support of U.S. government efforts will be addressed in a separate rulemaking.

One commenter noted that the revision to § 125.4(b)(9) expands the scope of the provision to allow exports, reexports, and retransfers to and between U.S. persons employed by different U.S. companies and the U.S. government. The commenter stated their opinion that this expansion is appropriate and desirable, as it benefits the U.S. government in practical situations. The Department accepts this comment and confirms that such exports, reexports, and retransfers may be authorized under the revised § 125.4(b)(9), if all other terms and conditions are met.

One commenter asked the Department to clarify the impact of the new and revised definitions on the requirements under Part 130. The Department confirms that the changes to the ITAR in the interim final rule did not change the requirements under Part 130. The Department also revises § 130.2 to clarify this understanding.

One commenter noted that the Department did not publish a final rule for activities that are not exports, reexports, or retransfers, and that the Bureau of Industry and Security (BIS) at the Department of Commerce did publish such a provision. The commenter asked the Department to clarify if any of the activities described by BIS as not being exports, reexports, or transfers under the Export Administration Regulations (EAR) would be exports, reexports, or retransfers under the ITAR. The Department confirms that it would not be appropriate to rely on provisions outside of the ITAR or guidance provided by any entity other than the Department for authoritative interpretive guidance regarding the provisions or scope of the ITAR. The Department also notes that any activity meeting the definition of export, reexport, or retransfer requires authorization from the Department unless explicitly excluded by a provision of the ITAR, the Arms Export Control Act, or other provision of law.

One commenter asked if, as the Department did not publish a final rule defining “required” or “directly related,” exporters can rely on definitions in the EAR or guidance from the BIS on those two terms. The ITAR does not define “required” or “directly related.” The Department confirms that it would not be appropriate to rely on definitions outside of the ITAR or guidance provided by any entity other than the Department for authoritative interpretive guidance regarding the provisions or scope of the ITAR. Further questions regarding the application of the terms “required” or “directly related” should be referred to the Department for additional interpretive guidance.

Several commenters submitted comments regarding definitions and other provisions that were included in the proposed rule, but not published in the interim final rule. The Department did not accept comments on issues not addressed in the interim final rule and will address those definitions and other provisions included in the proposed rule, but not published in the interim final rule, in a separate rulemaking.

In this final rule, the Department has also made changes to §§ 126.16 and 126.17 to ensure that they remain consistent with the definitions contained in the treaties (with Australia and the United Kingdom, respectively) that they implement. These treaties are controlling law, and the Department realized that, unless a correction were made in this final rule, the ITAR definitions of “reexport” and “retransfer” would be inconsistent with the treaty definitions. Therefore, for those two sections and the matters controlled therein, the treaty definitions will control. Conforming edits were also made to the definitions in §§ 120.19 and 120.51 to clarify that the definitions did not apply to matters covered by the treaties.

The Department of State is of the opinion that controlling the import and export of defense articles and services is a foreign affairs function of the U.S. government and that rules implementing this function are exempt from sections 553 (rulemaking) and 554 (adjudications) of the Administrative Procedure Act (APA). Although the Department is of the opinion that this rulemaking is exempt from the rulemaking provisions of the APA and without prejudice to its determination that controlling the import and export of defense articles and defense services is a foreign affairs function, the Department provided a 30-day public comment period and is responding to the comments received.

Since this rulemaking is exempt from the rulemaking provisions of 5 U.S.C. 553, there is no requirement for an analysis under the Regulatory Flexibility Act.

This rulemaking does not involve a mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

For purposes of the Small Business Regulatory Enforcement Fairness Act of 1996 (the “Act”), a major rule is a rule that the Administrator of the Office of Management and Budget's Office of Information and Regulatory Affairs (OIRA) finds has resulted or is likely to result in: (1) An annual effect on the economy of $100,000,000 or more; (2) a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and foreign markets. The Department does not believe this rulemaking will meet these criteria.

This rulemaking will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rulemaking does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this rulemaking.

Executive Orders 12866 and 13563 direct agencies to assess 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, distributed impacts, and equity). The executive orders stress the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. OIRA has not designated this rulemaking a “significant regulatory action” under section 3(f) of Executive Order 12866.

The Department of State has reviewed the rulemaking in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

The Department of State has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Accordingly, Executive Order 13175 does not apply to this rulemaking.

This rulemaking does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35; however, the Department of State seeks public comment on any unforeseen potential for increased burden.

Accordingly, for the reasons set forth above, the interim final rule that was published at 81 FR 35611 on June 3, 2016, is adopted as a final rule with the following changes:

Pursuant to the authority granted in 33 U.S.C. 1605, the DoN amends 32 CFR part 706.

This amendment provides notice that the DAJAG (Admiralty and Maritime Law), under authority delegated by the Secretary of the Navy, has certified that USS JOHN FINN (DDG 113) is a vessel of the Navy which, due to its special construction and purpose, cannot fully comply with the following specific provisions of 72 COLREGS without interfering with its special function as a naval ship: Annex I, paragraph 2(f)(ii), pertaining to the placement of task lights; Annex I, paragraph 3(a), pertaining to the location of the forward masthead light in the forward quarter of the ship, and the horizontal distance between the forward and after masthead lights; and Annex I, paragraph 3(c), pertaining to placement of task lights not less than two meters from the fore and aft centerline of the ship in the athwartship direction. The DAJAG (Admiralty and Maritime Law) has also certified that the lights involved are located in closest possible compliance with the applicable 72 COLREGS requirements.

Moreover, it has been determined, in accordance with 32 CFR parts 296 and 701, that publication of this amendment for public comment prior to adoption is impracticable, unnecessary, and contrary to public interest since it is based on technical findings that the placement of lights on this vessel in a manner differently from that prescribed herein will adversely affect the vessel's ability to perform its military functions.

Marine safety, Navigation (water), and Vessels.

For the reasons set forth in the preamble, amend part 706 of title 32 of the CFR as follows:

The Coast Guard will enforce the safety zones listed in 33 CFR 165.160 on the specified dates and times as indicated in Table 1 below. This regulation was published in the Federal Register on November 9, 2011 (76 FR 69614).

Under the provisions of 33 CFR 165.160, vessels may not enter the safety zones unless given permission from the COTP or a designated representative. Spectator vessels may transit outside the safety zones but may not anchor, block, loiter in, or impede the transit of other vessels. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

This notice is issued under authority of 33 CFR 165.160(a) and 5 U.S.C. 552(a). In addition to this notice in the Federal Register, the Coast Guard will provide mariners with advanced notification of enforcement periods via the Local Notice to Mariners and marine information broadcasts.

If the COTP determines that a safety zone need not be enforced for the full duration stated in this notice, a Broadcast Notice to Mariners may be used to grant general permission to enter the safety zone.

Background

Humpback whales occur throughout the world in both coastal and open ocean areas. They are a highly migratory species, moving between breeding grounds in tropical and subtropical latitudes and feeding grounds in temperate and polar latitudes. A large portion of the humpback whales found in the North Pacific occupy waters surrounding Hawaii annually during winter months where they engage in breeding, calving, and nursing behaviors. They are commonly found in Hawaii between October and May, with the peak season—the highest concentration of whales in the region—occurring from January through March. However, there are confirmed sightings and several anecdotal reports of humpback whales arriving to the region as early as August and remaining in the area until as late as June.

Prior to commercial whaling, the worldwide population of humpback whales is thought to have been in excess of 125,000 individuals (NMFS, 1991), with abundance of humpback whales in the North Pacific estimated at 15,000 individuals (Rice, 1978). Between 1905 and 1960, intense commercial whaling operations targeted humpback whales worldwide and depleted the species in the North Pacific to approximately 1,000 individuals (Rice, 1978). Humpback whale abundance estimates in the waters surrounding Hawaii in the 1960s are not clear, but estimates around 1977 were as low as 895 (Darling et al., 1983).

In 1966, treaties under the International Whaling Commission (IWC) protected humpback whales from further harvesting by issuing a global moratorium on the whaling of the species, including in the North Pacific. The humpback whale was then listed as an endangered species in 1970 under the United States (U.S.) Endangered Species Conservation Act of 1969, which was later superseded by the ESA. Humpback whales were considered to be a depleted species under the U.S. Marine Mammal Protection Act (MMPA) of 1972 on the basis of their ESA listing. In 1992, Congress created the Hawaiian Islands Humpback Whale National Marine Sanctuary (HIHWNMS) under the Hawaiian Islands National Marine Sanctuary Act to protect humpback whales and their habitat in Hawaii.

Humpback whale abundance estimates in Hawaii have increased over time to the most recent 2006 estimate of 10,103 humpback whales (Calambokidis et al., 2008). The Office of National Marine Sanctuaries (ONMS) estimates that the current abundance of humpback whales that use waters surrounding Hawaii is between 10,000 and 15,000 animals, although not all of these animals are in Hawaii at the same time during the season (ONMS, 2015).

The MMPA provides substantial protections to all marine mammals, although there are no regulations that specifically address humpback whales under the MMPA in Hawaii. Under section 102 of the MMPA, it is unlawful for any person, vessel, or other conveyance to “take” any marine mammal in waters under the jurisdiction of the United States (16 U.S.C. 1372). Section 3(13) of the MMPA defines the term “take” as “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal” (16 U.S.C. 1362 (13)). Except with respect to military readiness activities and certain scientific research activities, the MMPA defines the term harassment as “any act of pursuit, torment, or annoyance which: (i) Has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment)” (16 U.S.C. 1362 (18)).

NMFS' regulations implementing the MMPA further describe the term “take” to include “the negligent or intentional operation of an aircraft or vessel, or the doing of any other negligent or intentional act which results in disturbing or molesting a marine mammal; and feeding or attempting to feed a marine mammal in the wild” (50 CFR 216.3). The MMPA provides limited exceptions to the prohibition on take for activities, such as scientific research, public display, or incidental take in commercial fisheries. Such activities require a permit or authorization, which may be issued only after a thorough agency review.

Section 112 of the MMPA authorizes NMFS to implement regulations that are “necessary and appropriate to carry out the purpose” of the MMPA (16 U.S.C. 1382).

Humpback whales have been listed as endangered under the ESA since 1970. The ESA prohibits any action that results in a take of a listed species, unless authorized or permitted. A take is defined by the ESA as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct” (16 U.S.C. 1531 et seq.). The ESA does not specifically define the term “harassment” of a listed species.

Protections for humpback whales in Hawaii were initially promulgated under the ESA, after NMFS determined that guidelines published in 1979 as a “Notice of Interpretation of `Taking by Harassment' in Regard to Humpback Whales in the Hawaiian Islands Area” (44 FR 1113) proved ineffective in protecting humpback whales in Hawaii from tour vessel operators approaching closer than the recommended viewing guidelines. The ESA rule protecting humpback whales in Hawaii was published on November 23, 1987 as an interim regulation (52 FR 44912), and then finalized on January 19, 1995 (60 FR 3775). That rule made it unlawful to operate an aircraft within a 1,000 feet, approach by any means within 100 yards, cause a vessel or other object to approach within a 100 yards, or disrupt the normal behavior or prior activity of a humpback whale by any other act or omission. Regulations regarding implementation of the ESA were then reorganized on March 23, 1999, and the section containing the approach regulations for humpback whales in Hawaii was changed from 50 CFR 222.31 to 50 CFR 224.103 (64 FR 14052).

Today, we publish elsewhere in this issue of the Federal Register a final rule to separate humpback whales into 14 DPSs and revise the species-wide listing. In that rule, the humpback whales that use the waters surrounding Hawaii as their breeding grounds are identified as the “Hawaii DPS,” which is not listed under the ESA as endangered or threatened and, therefore, is no longer protected under the ESA. Because our approach regulations for humpback whales were authorized only under the ESA, these protections will no longer be in effect upon the effective date of the listing rule. Humpback whales in Hawaii would continue to be protected by approach regulations only within the boundaries of the HIHWNMS under the National Marine Sanctuaries Act (15 CFR 922.184 (a)(1)-(2) and (b)).

In the proposed listing rule, we solicited comments on whether we should continue to have approach regulations for the Hawaii humpback whales—other than in the sanctuary—if these whales are no longer listed under the ESA. We received five comments on this topic. Two of the comments were in support of continuing approach regulations for areas outside the sanctuary, and one of these comments further requested that an approach rule for the Hawaii humpback whales include an interception or leapfrog provision. One comment opposed an approach rule outside of the sanctuary, noting that the vessels do not pose a threat to the whales. As discussed in greater detail below, we disagree that vessels do not pose a threat to the whales. Finally, two comments generally supported approach regulations for humpback whales in U.S. waters.

The need for this action is to ensure that humpback whales are protected from take where protections from close approach do not exist or no longer apply. Because humpback whales in Hawaii will no longer be protected from take or harassment under the ESA upon the effective date of the humpback whale ESA listing rule, and because humpback whales are such charismatic species that invariably attract individuals and tour companies to interact with them, we believe regulatory protections are necessary and appropriate to prevent take, including harassment, as those terms are defined by the MMPA. Evidence cited under “Rationale for Regulations” below shows that interactions between humpback whales and vessels harass the whales, as shown by changes in behavior of the whales when closely approached, and pose a danger to humpback whales due to potential for vessel collisions. This is particularly concerning in Hawaiian waters where they breed, calve, and nurture their young. Further, preventing take fosters humpback whale health, development, and safety.

The regulatory measures in this interim final rule are designed to protect humpback whales from take or harassment, as defined by the MMPA, from approach within 200 nautical miles (370.4 km) of the islands of Hawaii. Although we stress that unpermitted take of humpback whales or any marine mammals continues to be prohibited by the MMPA in any location, we believe that specific regulations aimed at approach and human interactions that result in take of humpback whales in Hawaii are warranted because: (1) Humpback whales are charismatic and sought out by local community members and tourists; (2) commercial and recreational whale watchers and other tour operators are expected to pursue humpback whales for close encounters absent protections; (3) the number of whales and humans using waters surrounding Hawaii has increased and continues to increase, thus raising the likelihood of human-whale interactions; and (4) approaching whales during the breeding, calving, and nursing season is likely to cause disturbance that could adversely affect reproduction and development of individuals. We are issuing these regulations pursuant to our rulemaking authority under MMPA sections 112(a) (16 U.S.C. 1382(a)) and 102 (16 U.S.C. 1372).

NMFS is implementing an interim final rule to ensure that there is no lapse in protection for humpback whales in Hawaii once the final ESA listing rule becomes effective. Notwithstanding this interim final rule, we are soliciting public comments on the Hawaii approach rule. NMFS will respond to any public comments in a final rule.

Under the MMPA, the regulations apply to all humpback whales found in the action area.

The action area for this rule is limited to the waters within 200 nautical miles (370.4 km) from shore of the islands of Hawaii. The islands of Hawaii consist of the entire Hawaiian Archipelago, including the Main Hawaiian Islands (Hawaii, Maui, Kahoolawe, Lanai, Molokai, Oahu, Kauai, and Niihau) and the Northwestern Hawaiian Islands.

The regulations apply to all forms of approach in water and air. Forms of approaching humpback whales include, but are not limited to, operating a manned or unmanned motorized, non-motorized, self-propelled, human-powered, or submersible vessel; operating a manned aircraft; operating an unmanned aircraft system (UAS) or drone; and swimming at the water surface or underwater (i.e., SCUBA or free diving). With this rule, we are not changing our existing approach restrictions for aircraft or other objects, including UASs. UASs are, at minimum, objects, and therefore UASs are not to approach humpback whales within 100 yards without a permit. We recognize that for many other purposes, however, UASs are considered “aircraft,” and we anticipate providing further guidance on this in the future.

The regulation prohibits people from operating aircraft within 1,000 feet (304.8 m) or approaching by any means within 100 yards (91.4 m) of humpback whales within the action area described above (see Geographic Action Area). This includes approach by interception (i.e., placing an aircraft, vessel, person, or other object in the path of a humpback whale so that the whale approaches within the restricted distance), also known as “leap frogging.” The regulations also prohibit disrupting the normal behavior or prior activity of a humpback whale. A disruption of normal behavior can include, but is not limited to, a rapid change in direction or speed; escape tactics such as prolonged diving, underwater course changes, underwater exhalation, or evasive swimming patterns; interruptions of breeding, nursing, or resting activities; attempts by a whale to shield a calf from a vessel or human observer by tail swishing or by other protective movements; or the abandonment of a previously frequented area.

We have determined that the following specific categories are exempt from the regulations:

(1) Federal, State, or local government vessels or persons operating in the course of their official duties such as law enforcement, search and rescue, or public safety;

(2) Vessel operations necessary to avoid an imminent and serious threat to a person, vessel, or the environment;

(3) Vessels restricted in their ability to maneuver, and because of this restriction are not able to comply with approach restrictions; or

(4) Vessels or persons authorized under permit or authorization issued by NMFS to conduct scientific research or response efforts that may result in taking of humpback whales.

Close human interaction poses a significant risk to the health and social structure of humpback whales. Because they are large and charismatic, humpback whales are often approached and observed by whale watchers and wildlife enthusiasts who are on vessels (boats), aircraft, or in the water. The interactions that ensue can result in take or harassment by causing injury or disrupting the normal behavior or prior actions of whales.

There are few studies that have directly examined the effects of approach of humpback whales in Hawaii. This may be due to lack of prioritization in research because protections from approach have been implemented in the region for 29 years, or because longstanding approach restrictions have resulted in fewer instances of humpback whale take or harassment from approach in Hawaii than other areas that do not have approach restrictions. However, there is a large amount of research on adverse effects of human interaction and approach on humpback whales and similar species in other regions throughout the world. Below, we summarize our use of this analogous evidence to analyze management options for minimizing take or harassment of understudied humpback whales in Hawaii from approach. We also consider research from other regions that do not have approach restrictions to provide insight on future potential effects on humpback whales in Hawaii if approach regulations are no longer in effect.

Threats to humpback whales from human interaction can result from vessel interactions, which create a risk of collisions, aircraft interactions, noise, and other human interactions, such as swimming with whales, that disrupt and interfere with the whales' normal activities while they are in Hawaii. Humpback whales in Hawaii may be more susceptible to harmful effects from human interaction than other regions because disruption of breeding, nursing, and calving activities could potentially impede healthy reproduction and development of the species. Furthermore, we expect an increase in human-whale interactions as both human and whale populations continue to increase.

Vessel approach and interactions with humpback whales can lead to behavioral changes or physical injury to the whale, which may affect energy budgets and habitat use patterns, cause displacement from preferred habitats, and affect individual and population health and fitness. Humpback whales have been found to exhibit predictable changes in behavior in response to vessels in close proximity to the animals. Behavioral responses in humpback whales such as changes in swimming speed, respiration, diving, and social behaviors were linked to vessel numbers, speed, and proximity in waters around Maui (Bauer and Herman, 1986; Bauer et al., 1993). In other parts of the world, Baker and Herman (1989) found that humpback whales in Alaska responded to vessels within 4,000 m with changes in respiratory behavior (decreasing blow intervals and increasing dive times) and orientation (moving away from approaching vessels' path). They concluded that vessels repeatedly approaching humpback whales could result in abandonment of their preferred feeding areas. A study examining approach to humpback whales in Hervey Bay, Australia concluded that whales were more likely to dive when vessels were within 300 m than when they are farther away, implying that vessels in close proximity to humpback whales can elicit evasive behavior (Corkeron, 1995). Another study off New South Wales, Australia observed a response from humpback whales when approached by a whale watch vessel 40 percent of the time, with 23 percent having approached the vessel and 17 percent having avoided the vessel (Stamation et al., 2010). Most observed humpback whales that approached the whale watch vessels during this study elicited behaviors attributed to disruption (e.g., trumpet blows and fluke swishes), and whales that avoided the vessels were reported to have longer dive times and time submerged. Vessels that approached humpback whales within 100 m were significantly more likely to elicit an avoidance response, particularly with regard to pods with a calf. Overall, humpback whales that were approached by whale watch vessels had a higher dive time, higher time submerged, and fewer surface activity behaviors than whales that were observed from the shore without vessels present, and pods with calves were more sensitive to vessel approach than pods without calves (Stamation et al., 2010).

In yet other situations, humpback whales became quickly habituated to human activity when repeatedly exposed to vessel traffic in the North Atlantic (Watkins, 1986). Habituation to human activity in Hawaii can lead to an increase in encounters between humans and whales, making whales more susceptible to physical injury from vessel strikes. This may especially be true for young humpback whales that are at an impressionable stage in development; 63.5 percent of vessel collisions between 1975 and 2011 in Hawaii involved calves and juveniles (Lammers et al., 2013). Regardless of whether humpback whales are eliciting evasive or incautious behavior, it is evident that behavioral harassment (take) of whales can occur with vessel approach.

Because humpback whales annually migrate over extremely long distances, energy budgeting is crucial for the health and reproduction of the species. A recent study by Braithwaite et al. (2015) measured the effects of vessel disturbance on energy use of humpback whales during migration. They concluded that overall energy use in migrating humpback whales increases when disturbed by encounters with approaching vessels. It is rare that humpback whales feed in waters surrounding Hawaii, so these animals are reliant on limited fat stores to provide energy for their breeding, calving, and nursing activities in the region. Any deficiency in the conservation of energy can be detrimental to these essential reproductive behaviors. Excessive energy use can be particularly taxing on pregnant and postpartum humpback whale females and their calves. An exorbitant amount of energy is needed to give birth to and nurse newborn calves (Darling 2001). An increase in energy use because of vessel disruptions in waters surrounding Hawaii can have negative implications for the health of mothers and the growth potential of calves (Braithwaite et al., 2015).

Reports of humpback whale harassment are common in Hawaii. NOAA Office of Law Enforcement (OLE) documented hundreds of complaints concerning harassment of humpback whales around Hawaii between 2007 and 2014. Although the locations of reported harassments to NOAA-OLE were not always precise, there were numerous complaints in areas outside the HIHWNMS.

Humpback whales may be particularly sensitive to human interaction in Hawaii during their breeding, calving, and nursing behaviors. Because the relationship between adults, particularly mothers, and calves early in the calves' lives is an integral stage in the social development of the species, disrupting the mother-calf relationship can hinder the behavioral development of humpback whale calves (Cartwright, 1999; Darling, 2001; Glockner-Ferrari and Ferrari, 1985). Aggressive behavior on the part of male whales and lack of awareness by males, as well as females avoiding these males, potentially make whales more susceptible to vessel strikes. Male humpback whales often display aggressive behavior during courting activities in the Hawaii breeding grounds (Darling et al., 1983; Tyack and Whitehead, 1983; Baker and Herman, 1984; Glockner-Ferrari and Ferrari, 1985; Clapham et al., 1992). Although aggressive behavior by humpback whales towards humans is uncommon, an increase in interactions with humans could potentially create more stress for animals that are already in a combative state (Baker and Herman, 1984; Bauer and Herman, 1986). Furthermore, males engaging in competitive behaviors and females avoiding aggressive advances from one or more males may not be fully cognizant of approaching vessels. Female whales have even been observed leading pursuing males closely to vessels in order to thwart their advances to mate (Glockner-Ferrari and Ferrari, 1985). Females protecting newborn calves and male escorts maintaining mating status with post-partum females with calves have also been observed displaying aggressive behaviors towards intruders, including humans (Darling, 2001). Aggressive courting and mating behaviors by both male and female humpback whales can increase the risk of vessel strikes. Restrictions against approaching whales while in this vulnerable state would lessen hazards for whales and humans.

Collisions between vessels and whales often result in life-threatening trauma or death for the cetacean. The impact is frequently caused by forceful contact with the bow or propeller of the vessel. Vessel strikes of humpback whales are typically identified by evidence of massive blunt force trauma (fractures of heavy bones and/or hemorrhaging) in stranded whales, and propeller wounds (deep slashes or cuts) and fluke/fin amputations on stranded or live whales (Wiley and Asmutis, 1995).

There is substantial evidence indicating vessel strikes with whales are increasing both globally and in Hawaii (Laist et al., 2001; De Stephanis and Urquiola, 2006; Panigada et al., 2006; Douglas et al., 2008; Carrillo and Ritter, 2010; Lammers et al., 2013). Lammers et al. (2013) estimated that reports of vessel collisions (i.e., any physical contact between a humpback whale and a vessel) increased 20-fold between 1976 and 2011 in the waters surrounding Hawaii, particularly between 2000 and 2011. There were 68 confirmed reports of vessel collisions during this timeframe, and 63 percent of the collisions involved calves and subadults (Lammers et al., 2013). Between 2007 and 2012, there were 39 confirmed reports of vessel collisions with humpback whales near Hawaii; 11 of these collisions were determined to be serious injuries (i.e., injury that will likely result in mortality, 50 CFR 229.2) and another 11 were proportionally prorated as serious injuries per the NMFS process for distinguishing serious from non-serious injury of marine mammals (NMFS, 2012; Bradford and Lyman, 2015). According to a database managed by the HIHWNMS, there were 76 reports of whale-vessel contacts in waters surrounding the Main Hawaiian Islands between 2002 and 2015, with a large majority of them occurring in the four islands region between Maui, Molokai, Lanai, and Kahoolawe. Of the vessel collisions where the status of the vessel's movement could be determined (i.e., either normal transiting or more directly approaching humpback whales), 17 percent of reports (11 of 66, 10 undetermined) indicated that the vessel was operating in a more directed approach of a humpback whale (Ed Lyman, personal communication, April 29, 2016).

The increase in reported vessel strikes with humpback whales in Hawaii in recent years can likely be attributed to multiple factors. An extensive awareness campaign and Hotline number were initiated in 2003 and likely contribute to the increased number of reports. However, Lammers et al. (2013) compiled a summary of all reported vessel collisions in Hawaii between 1975 and 2011 and concluded that increasing numbers of humpback whales in Hawaii was an important contributor to the trend. Tour vessels (e.g., whale watching, diving, snorkeling boats, etc.) comprised 61 percent of vessel collisions with humpback whales. Because the behavior of these vessels typically places them in close proximity to humpback whales, vessel collisions may have increased over time as the tour industry comparably expanded. It is important to note that tour vessels typically have a high number of passengers, and this may increase the likelihood of reporting a vessel collision.

Although more than half of reported vessel collisions with humpback whales in Hawaii in recent years occurred within the boundaries of the HIHWNMS, there have been a substantial number of vessel collisions outside Sanctuary waters. According to a database on reports of animals in distress managed by the HIHWNMS, 37 percent (28 of 76) of reported vessel collisions between 2002 and 2015 occurred outside the boundaries of the Sanctuary (Ed Lyman, HIHWNMS, personal communication, April 7, 2016). Many of the collisions outside the Sanctuary occurred in concentrated boat traffic and popular whale watching areas, such as the south shore of Oahu near Honolulu Harbor and the leeward side of Kauai. If legal protections from approaching humpback whales are not implemented outside the HIHWNMS, vessel collisions could significantly increase, especially with an increasing humpback whale population and increasing human-based use of the ocean in Hawaii.

Vessel collisions with humpback whales can also cause significant damage to vessels and result in serious harm to or death of passengers (e.g., Laist et al., 2001; Neilson et al., 2012). Human injury and death have occurred on several incidents involving humpback whale collisions with boats in Hawaii. According to a database of human interactions managed by the HIHWNMS, 9.2 percent (7 of 76) vessel collisions with humpback whales between 2002 and 2015 involved injuries to passengers or crew; this figure does not include injuries sustained when vessels moved suddenly to avoid collisions (Ed Lyman, personal communication, April 7, 2016). Notable incidents of serious harm include a young child dying in 2003 from head trauma sustained after a close interaction with a humpback whale off of Oahu (DePledge, 2003), and one woman in 2001 and another in 2015 hospitalized after vessel collisions with humpback whales off of Kauai (DePledge, 2003; D'Angelo, 2015).

Aircraft flown in proximity to humpback whales in Hawaii have been shown to elicit a behavioral response. Smultea et al. (1995) reported that humpback whales near Kauai, particularly pods with calves, responded to low flying planes by increasing swim speeds and changing direction. General accounts of disturbance of humpback whales in Hawaii and other regions caused by a range of sources, including helicopter tours, were highlighted in a workshop that reviewed and evaluated whale watching programs (Atkins and Swartz, 1989). Other reports have also discussed cases of disturbance of humpback whales in Hawaii resulting from helicopters and other aircraft (Shallenberger, 1978; Tinney, 1988).

Several studies targeting other species and/or other regions also provide evidence that aircraft can disrupt large whales. In their review on the effects of man-made noise on whales, Richardson and Würsig (1997) claim aircraft overflights with altitudes as high as 400 m can elicit specific reactions (e.g., sudden dives or turns and occasional tail or flipper slaps) from both baleen and toothed whales; however, behaviors can vary depending on species, animal activity, and water depth. Various behavioral responses from sperm whales were observed in response to aircraft throughout different parts of the world, including in waters near Kauai, where they reacted to aircraft at about 250 m in altitude and 360 m in horizontal distance (Smultea et al., 2008). Short-term behavioral responses (e.g., short surfaces, immediate dives or turns, changes in behavior state, vigorous swimming, and breaching) were observed in both bowhead and beluga whales when closely approached by helicopters and fixed-wing aircraft. Most reactions occurred within 150 m altitude and 250 m lateral distance of helicopters and 182 m altitude and 250 m (but up to 460 m) lateral distance of fixed-wing aircraft (Patenaude et al., 2002). Aircraft that hover or repeatedly pass over whales at altitudes low enough to affect the whales are thought to cause significantly more disruption than aircraft that briefly pass directly over or to the side of whales (Richardson and Würsig, 1997).

Aircraft are explicitly cited by NMFS as a potential instrument of take under the MMPA regulations, which state that take can include “the negligent or intentional operation of an aircraft or vessel, or the doing of any other negligent or intentional act which results in disturbing or molesting a marine mammal” (50 CFR 216.3). Other regulations and notices have interpreted approach to humpback whales by aircraft in Hawaii as a form of harassment. Current approach regulations promulgated under the ESA (50 CFR 224.103; regulations that will no longer apply upon the effective date of the ESA humpback whale listing final rule) and in the HIHWNMS (15 CFR 922.184) restrict operating aircraft within 1,000 feet (304.8 m) of humpback whales in Hawaii and Sanctuary waters. A response to a comment in the November 23, 1987, interim rule “Approaching Humpback Whales in Hawaiian Waters” further clarified the restricted area around the whale to aircraft as “a 1,000 foot aerial dome over a whale” (52 FR 44912). This 1,000 foot perimeter was implemented in the final rule humpback whale approach rule on January 19, 1995 (60 FR 3775).

Regions outside Hawaii have also implemented aircraft operations near whales or other marine mammals, supporting the widely-accepted need to protect whales from this type of disturbance. Approach regulations for North Atlantic right whales published on February 13, 1997, restrict approach by aircraft conducting whale watching activities within 500 yards (457.2 m) of a whale, and require aircraft to take a course away from the whale and immediately leave the area at a constant airspeed if within 500 yards (457.2 m) (50 CFR 224.103(c)). It is also prohibited to fly motorized aircraft at less than 1,000 feet (304.8 m) over marine mammals in the Channel Islands National Marine Sanctuary (15 CFR 922.71), the Greater Farallones National Marine Sanctuary (15 CFR 922.82), or in specified regions of the Monterey Bay National Marine Sanctuary (15 CFR 922.132). Approach regulations for all cetaceans in Australia require that helicopters do not approach within 500 m and all other aircraft do not approach within 300 m (National Parks and Wildlife Amendment (Marine Mammals) Regulation 2006 (Cth) No. 271 (57)). New Zealand has similar rules for approaching wildlife, in that it is unlawful to operate aircraft from a horizontal distance of 150 m from any marine mammal, 200 m from any baleen or sperm whale mother-calf pair, and 300 m from any marine mammal if three or more vessels or aircraft are already positioned to enable passengers to watch the animals (Marine Mammals Protection Regulations 1992 s 18(g, h) and s 19(d)).

Humans introduce sound intentionally and unintentionally into the marine environment for navigation, oil and gas exploration and acquisition, research, military activities, and many other reasons. Noise exposure can result in a range of impacts to whales, from little or none to severe, depending on the source, level, distance between the source and the receptor, characteristics of the animal (e.g., hearing sensitivity, behavioral context, age, sex, and previous experience with sound source), time of day or season, and various other factors. In marine mammal populations, noise can seriously disrupt communication, navigational ability, and social patterns. Humpback whales use sound to communicate, navigate, locate prey, and sense their environment. Both anthropogenic and natural sounds may cause interference with these functions.

Understanding the specific impacts of sounds on humpback whales is difficult. However, it is clear that the geographic scope of potential impacts is vast as low-frequency sounds can travel great distances under water, and these sounds have the potential to reduce the space that whales use for communication (i.e., communication space). For example, shipping was predicted to reduce communication space of singing humpback whales in the northeastern United States by eight percent (Clark et al., 2009). Other detrimental effects of anthropogenic noise include masking and possible temporary threshold shifts. Masking results when noise interferes with cetacean social communication, which may range greatly in intensity and frequency. Some adjustment in acoustic behavior is thought to occur in response to masking. For instance, humpback whale songs were found to lengthen during low-frequency active sonar activities (Miller et al., 2000). This altered song length persisted two hours after the sonar activities stopped (Fristrup et al., 2003). Researchers have also observed diminished song vocalizations in humpback whales during remote sensing experiments 200 km away from the whales' location in the Stellwagen Bank National Marine Sanctuary (Risch et al., 2012). Hearing loss can also be permanent if the sound is intense enough, although effects vary greatly across individuals. This and other factors make it difficult to determine a standardized threshold. Humpback whales do not appear to be frequently involved in strandings related to noise events. However, there is one record of two whales found dead with extensive damage to the temporal bones near the site of a 5,000 kg explosion that likely produced shock waves responsible for the injuries (Ketten et al., 1993; Weilgart, 2007).

Humpback whales in Hawaii are likely exposed to moderate levels of underwater noise resulting from human activities, which include commercial and recreational vessel traffic, pile driving from coastal construction, and activities in Naval test ranges. Boat noise might affect humpback whale singing behavior by altering the rhythm or increasing the tempo of songs (Norris, 1994). Noise is also the likely major contributor of reported behavioral changes of humpback whales in Hawaii with regard to aircraft disturbance (Shallenberger, 1978; Tinney, 1988; Atkins and Swartz, 1989; Smultea et al., 1995). Overall, population-level effects of exposure to underwater noise in Hawaii are not well established, but exposure is likely chronic. As vessel traffic and other in-water activities are expected to increase in Hawaii, the level of this threat is also expected to increase.

The humpback whale population in Hawaii is increasing (Darling et al., 1983; Baker and Herman, 1987; Calambokidis et al., 1997; Cerchio 1998; Mobley et al., 2001; Calambokidis et al., 2008). The human population is also increasing (U.S. Census, 2015). As both populations increase, the probability of humans interacting with humpback whales in Hawaii will likely increase. Increasing numbers of humpback whales in Hawaii also increase the likelihood of encountering whales outside the HIHWNMS, in areas where whales would not have the benefit of continued protection from approach if not ESA-listed. Current ESA approach restrictions (which will no longer be in effect upon the effective date of the ESA listing rule) limit opportunities to lawfully approach humpback whales, thus establishing a safe perimeter around whales. If whales are not protected by approach restrictions, this would erase this perimeter and increase the danger attributed to being in proximity to whales. With an increasing humpback whale population in Hawaii, eliminating approach regulations is a cause for concern with regard to both human and whale safety.

As a result of human population growth and demand for new products and tourist destinations, ocean recreation in Hawaii is increasing. The value of the tour boat industry has increased by 300 percent from 1984 to 2003 (Markrich, 2004). Whale watching has also increased in recent years from 52 operators in 1999 to an estimated 117 companies currently offering tours specific to whale watching (Hoyt, 2002; Internet search, February 2016).

As the number of people, tourism, and ocean-based activities increases in Hawaii, the number of interactions between humans and humpback whales is also likely to increase. If humpback whales are not protected by approach regulations in Hawaii, unrestricted access to whales outside the HIHWNMS would likely result in more encounters with commercial whale watching and recreational vessels, thus resulting in increased take of whales, while placing the safety of both humans and whales in jeopardy.

We are soliciting comments on this interim final rule and the supporting Environmental Assessment (see ADDRESSES). No public hearings have been scheduled but public hearings can be requested. Requests for public hearings must be made in writing (see ADDRESSES) by October 11, 2016. If a public hearing is requested, a notice detailing the specific hearing location and time will be published in the Federal Register at least 15 days before the hearing is to be held. Information on the specific hearing locations and times will also be posted on our Web site at: http://www.fpir.noaa.gov/PRD/prd_humpback.html.

A complete list of all references cited in this interim final rule can be found at http://www.fpir.noaa.gov/PRD/prd_humpback.html or www.regulations.gov, and is available upon request from the NMFS Pacific Islands Regional Office in Honolulu, HI (see FOR FURTHER INFORMATION).

NMFS has prepared an Environmental Assessment pursuant to NEPA (42 U.S.C. 4321 et seq.) to support this rule. The Environmental Assessment contains an analysis of two no action alternatives and two action alternatives. There are a number of elements that were common to both of the action alternatives analyzed, including the preferred alternative described in this document and a number of exceptions that would apply to these alternatives. The Environmental Assessment is available for review and comment on the NMFS Pacific Islands Region Web site at http://www.fpir.noaa.gov/PRD/prd_humpback.html.

This interim final rule has been determined to be not significant for purposes of Executive Order 12866.

The purpose of the Paperwork Reduction Act is to minimize the paperwork burden for individuals, small businesses, educational and nonprofit institutions, and other persons resulting from the collection of information by or for the Federal government. The interim final rule includes no new collection of information, so further analysis is not required.

NMFS has determined that this rule will be implemented in a manner consistent, to the maximum extent practicable, with the enforceable policies of the approved coastal zone management program of the State of Hawaii. The consistency determination has been submitted for review to the responsible State agency under section 307(c)(1) of the Federal Coastal Zone Management Act of 1972.

Executive Order 13132 requires agencies to take into account any federalism impacts of regulations under development. It includes specific directives for consultation in situations in which a regulation will preempt state law or impose substantial direct compliance costs on state and local governments (unless required by statute). Neither of those circumstances is applicable to this interim final rule; therefore this action does not have federalism implications as that term is defined in E.O. 13132.

Pursuant to Section 515 of Public Law 106-554 (the Information Quality Act), this information product has undergone a pre-dissemination review by NMFS. The signed Pre-dissemination Review and Documentation Form is on file with the NMFS Pacific Islands Regional Office (see ADDRESSES).

This interim final regulation is exempt from the requirements of the Regulatory Flexibility Act because NMFS has determined that notice and public comment would be impracticable and against the public interest.

There is good cause to waive the prior notice and public comment requirement of the Administrative Procedure Act, and make this rule effective immediately upon publication in the Federal Register. This rule would prohibit the approach of humpback whales by aircraft within a 1,000 feet (304.8 m) and by any means within 100 yards (91.4 m), including to cause a vessel, person or other object to approach within 100 yard (91.4 m), and approach a whale by interception (placing an aircraft, vessel, person or other object in the path of a humpback whale so that the whale approaches within 1000 feet of the aircraft or 100 yards of the vessel, person or object). Approach regulations reflecting the above prohibitions have existed in Hawaii for 29 years, except the interception and exceptions provisions are new. Further, NMFS published in the Federal Register a proposed revision to the humpback listing in April 15, 2015 and, as dicussed above, requested comments on whether approach regulations under the MMPA should be considered if the proposed Hawaii DPS is finalized, as this DPS would no longer be listed or protected under ESA regulations.

Unregulated approach of humpback whales in Hawaii by aircraft, vessel, persons, or other means would likely lead to increased take of humpback whales. Upon the effective date of the ESA listing final rule, there will be a lapse in protections for the Hawaii DPS of humpback whales if these approach regulations under the MMPA are not in place. Because we have an obligation to uphold the regulatory objectives of the MMPA, and leaving humpback whales in Hawaii without approach regulations would result in increased take and consequent noncompliance with the statute, NMFS finds it impracticable and contrary to the public interest to have prior notice and comment.

For the reasons stated above, NMFS believes protections for Hawaii humpback whales are necessary and appropriate during the time the ESA listing determination becomes effective and the humpback whales begin to return to waters surrounding Hawaii in September.

For the reasons set out in the preamble, 50 CFR part 216 is amended as follows:

On May 31, 2001, we issued a final rule (66 FR 29502) applicable to waters within 200 nautical miles (370 km) of Alaska that made it unlawful for a person subject to the jurisdiction of the United States to (a) approach within 100 yards (91.4 m) of a humpback whale, (b) cause a vessel or other object to approach within 100 yards (91.4 m) of a humpback whale, or (c) disrupt the normal behavior or prior activity of a whale. The regulations also require vessels to operate at a slow, safe speed when near a humpback whale. These regulations are set forth at 50 CFR 224.103(b) (2015). When the provisions were adopted, we cited MMPA section 112(a) and ESA section 11(f) as authority (16 U.S.C. 1382(a); 16 U.S.C. 1540(f)). However, because the humpback whale was listed as endangered throughout its range, the approach restrictions were codified only in part 224 of the ESA regulations (which applies to “Endangered Marine and Anadromous Species”).

On April 21, 2015, we proposed to revise the species-wide ESA listing of the humpback whale by recognizing fourteen distinct population segments (DPSs), two of which would be listed as endangered species (Cape Verde Islands/Northwest Africa and Arabian Sea DPSs) and two as threatened species (Western North Pacific and Central America DPSs) (80 FR 22303). In that proposed ESA listing rule, we concluded that the remaining ten DPSs were not endangered or threatened throughout all or a significant portion of their ranges and therefore did not propose to list them. Following consideration of information received through the public comment period on the proposed ESA listing rule, including public hearings, we are separately publishing in today's issue of the Federal Register a final rule implementing the revised listing determinations for humpback whales. Under that ESA listing final rule, we are listing one of the fourteen DPSs as a threatened species (the Mexico DPS), and four DPSs as endangered species (the Arabian Sea DPS, the Cape Verde Islands/Northwest Africa DPS, the Central America DPS, and the Western North Pacific DPS).

As a result of the final humpback whale ESA listing rule, maintaining the Alaska approach regulations only within their the original location in the Code of Federal Regulations (CFR) is no longer appropriate. This is because, while some humpback whales that spend part of the year in Alaskan waters remain listed as endangered (those that are members of the Western North Pacific DPS), others are now listed as threatened (those that are members of the Mexico DPS) or are not listed (those that are members of the Hawaii DPS). All protections of section 9 of the ESA, including the prohibitions against “take” in 16 U.S.C. 1538(a)(1)(B)-(C), are being extended to the threatened humpback whales as part of the final ESA listing rule (50 CFR 223.213). The ESA listing reclassifications thus require recodifying the approach regulations that currently appear in part 224 (which pertains only to endangered species) so that they also appear in part 223 (which pertains to threatened species) to ensure it is clear that humpback whales listed as threatened or endangered under the ESA are protected from approach in Alaska.

Accordingly, concurrently with finalizing the humpback whale reclassification under the ESA, we are, through this final rule, recodifying the Alaska approach regulations that currently appear in § 224.103(b) so that they also appear in § 223.214 for the protection of listed humpback whales occurring in the waters surrounding Alaska. These include whales from the Western North Pacific DPS (endangered) and Mexico DPS (threatened), as specified in the final ESA listing rule. The approach regulations have been in effect for 15 years and are important in light of the potential impacts posed by the whale watching industry, recreational boating community, and other maritime users.

In addition, we are also setting forth the Alaska approach regulations in part 216, which contains regulations regarding the taking and importing of marine mammals under the MMPA (50 CFR 216.18). Because the approach regulations were adopted in part under the authority of the MMPA, this represents a technical change only. Setting the regulations out clearly in this part of the CFR will clarify that all humpback whales that may occur in or transit through the waters surrounding Alaska are protected from approach, not just those that are ESA-listed, and reflects that the regulations were originally adopted under MMPA as well as ESA authority.

These three regulations (50 CFR 224.103(b), 223.214, and 216.18) work together to provide seamless protection to humpback whales that occur in the waters surrounding Alaska. While the ESA rules only apply to humpback whales listed as endangered or threatened species under the ESA (currently, only the Western North Pacific DPS and the Mexico DPS), the MMPA protections apply to all humpback whales in the specified geographic area (including the Hawaii DPS that is not listed). The provisions set forth under these authorities are substantively identical, so vessel operators will need to continue to exercise the same caution with regard to all humpback whales, as the current regulations have long required.

Recodifying these longstanding provisions so they appear both in 50 CFR parts 223 and 224, and setting them out clearly in part 216, represents a technical change only. The substantive provisions and the authority for their adoption are unchanged. The only changes to the regulations as compared to the existing provisions have been technical corrections and adjustments, including:

• Inserting the word “endangered” in front of “humpback whales” in the heading and in the main sections of text of the existing ESA-based regulation in § 224.103(b) to reflect that it does not apply to all humpback whales;

• Inserting the word “threatened” in front of “humpback whales” in the heading and in the main sections of text of the new ESA-based regulation in § 223.214 to reflect that it does not apply to all humpback whales;

• Adjusting the numbering of subsections to fit the new locations in § 216.18 and § 223.214;

• Directly incorporating the description of disruption of normal behavior or prior activity of a whale from § 224.103(a)(4) (2015) (a cross-referenced provision within the approach regulations protecting whales in Hawaii, which will no longer be in effect upon finalization of the revisions to the ESA listing status of humpback whales) into the regulations in § 216.18(a)(3), § 223.214(a)(3), and § 224.103(b)(1)(iii);

• Updating language by changing “her” to “its” in the phrase “to the extent that a vessel is restricted in her ability to maneuver. . . .” in § 216.18(b)(2), § 223.214(b)(2), and § 224.103(b)(2)(ii);

• In the provisions being set out at part 216, tailoring the reference to applicable permit procedures to refer to the relevant MMPA permit procedures (which are contained in subpart D of part 216);

• In 50 CFR 224.103(b)(3), updating a reference to a safe speed rule formerly set out at 33 U.S.C. 2006. This is necessary because the safe speed rule is now set out in regulations from the Department of Homeland Security at 33 CFR 83.06. These regulations were adopted in 2010 pursuant to the Coast Guard and Maritime Transportation Authorization Act of 2004 (Pub. L. 108-293, sec. 303, 118 Stat. 1028 (2004)), which directed that such final regulations would replace sections 2001-2038 of Title 33 of the United States Code. See 33 U.S.C. 2071 (codifying sec. 303(b)); 75 FR 19544 (April 15, 2010), 79 FR 37898 (July 2, 2014); and

• In 50 CFR 224.103(b)(2)(vi), updating a reference to special regulations for Glacier Bay National Park and Preserve formerly set out at 36 CFR 13.65. This is necessary because the special regulations applicable within Glacier Bay National Park and Preserve, including vessel operating restrictions to protect whales, were reorganized in 2006 and are now set out in regulations from the Department of the Interior at 36 CFR 13.1102-13.1188. See 71 FR 69328 (Nov. 30, 2006).

We solicited public comments in the proposed ESA listing rule (80 FR 22303, April 21, 2015) regarding relocation of the Alaska approach regulations. See 80 FR at 22354. At the time of the proposed listing rule, we did not expect that there would be any endangered DPSs present in Alaska and so sought comment as to whether we should relocate them from part 224 to part 223 (setting out ESA regulations applicable to “Threatened Marine and Anadromous Species”) and also as to whether we should set them out in part 216 as MMPA regulations. Because we are now listing the Western North Pacific DPS as endangered, we will retain the approach regulations under the ESA at 50 CFR 224.103, and because we are listing the Mexico DPS as threatened, we will also add the provisions to part 223 at 50 CFR 223.214.

The State of Alaska was the only commenter that specifically addressed approach regulations in Alaska. The State supported retaining approach regulations in U.S. waters in Alaska because of the conservation benefits to ESA-listed and non-listed humpback whales that frequent Alaska waters. We therefore promulgate a final rule effecting a technical correction and recodification that recodifies these provisions so that they appear in both parts 223 and 224 and also setting the provisions out in part 216 (MMPA Regulations) at 50 CFR 216.18, to reflect that these provisions were originally adopted under the MMPA as well as the ESA and are an important source of protection for these marine mammals.

NMFS finds that good cause exists, under the Administrative Procedure Act, for adopting these rule changes as a final rule without stand-alone public notice and comment. See 5 U.S.C. 553(b)(B). As noted above, public comments on this action were solicited in the proposed ESA listing rule (80 FR 22303, April 21, 2015) and have been fully considered both for this technical regulation and in the context of the development of the final ESA listing rule. We find that additional notice and public procedure on this technical final rule is unnecessary because no substantive modifications are being made to the regulations being recodified so that they appear both in 50 CFR part 224 and 50 CFR part 223 and set out in 50 CFR part 216. All of the changes are technical, including the change to the language at § 224.103(b)(1)(iii) (which now sets out a definition directly in the text that was previously cross-referenced, as noted above). Consequently, the final rule does not alter the rights or responsibilities of any party. Additionally, delaying implementation of this rule for a separate public notice and comment period would be contrary to the public interest because it would create a lapse in necessary protections for the humpback whales that transit through Alaskan waters.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

This final rule does not contain any collections of information pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Therefore, NMFS has not submitted any information to the Office of Management and Budget for review.

Pursuant to section 605(b) of the Regulatory Flexibility Act, the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule would not have a significant economic impact on a substantial number of small entities. This action affects owner-operator whale watch businesses, eco-tourism companies (mostly local kayak tour businesses), and owner-operator fishing enterprises.

This action is a technical change to update the provisions and recodify them so they appear at both 50 CFR part 224 (which applies to “Endangered Marine and Anadromous Species”) and 50 CFR part 223 (which applies to “Threatened Marine and Anadromous Species”). Additionally, when the Alaska provisions were adopted, we cited section 112(a) of the MMPA in addition to section 11(f) of the ESA as authority (16 U.S.C. 1382(a); 16 U.S.C. 1540(f)). However, because the humpback whale was listed throughout its range as endangered, the rule was codified only in part 224. Setting out the regulations in a new section, § 223.214, is necessary in order to continue the protection of threatened humpback whales, in addition to the endangered humpback whales, in Alaska. We are also setting out these provisions in 50 CFR part 216, for the protection of all humpback whales that may occur or transit through the waters surrounding Alaska, to reflect that these provisions were adopted under the MMPA as well as the ESA and are an important source of protection for these marine mammals. These provisions have been in effect for 15 years and are important in light of the potential impacts posed by the whalewatching industry, recreational boating community, and other maritime users. These provisions are merely being recodified within the CFR to continue existing protections in light of revisions to the ESA listing status of humpback whales.

Because of this certification, a regulatory flexibility analysis is not required and none has been prepared.

NMFS analyzed this rule under the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.) and NOAA's Administrative Orders (NAO) 216-6A and 216-6. NMFS determined that this action satisfies the standards for reliance upon a categorical exclusion under NAO 216-6 §  6.03c.3(i) for “policy directives, regulations and guidelines of an administrative, financial, legal, technical or procedural nature.” NAO 216-6, §  6.03c.3(i). The rule would not trigger an exception precluding reliance on the categorical exclusion because it does not involve a geographic area with unique characteristics, is not the subject of public controversy based on potential environmental consequences, will not result in uncertain environmental impacts or unique or unknown risks, does not establish a precedent or decision in principle about future proposals, will not have significant cumulative impacts, and will not have any adverse effects upon endangered or threatened species or their habitats. Id. §  5.05c. As such, it is categorically excluded from the need to prepare an Environmental Assessment. In addition, NMFS finds that because this rule will not result in any effects to the physical environment, much less any adverse effects, there would be no need to prepare an Environmental Assessment even aside from consideration of the categorical exclusion. See Oceana, Inc. v. Bryson, 940 F. Supp. 2d 1029 (N.D. Cal. 2013). Issuance of this rule does not alter the legal and regulatory status quo in such a way as to create any environmental effects. See Humane Soc. of U.S. v. Johanns, 520 F. Supp. 2d. 8, 29 (D.D.C. 2007).

For the reasons set out in the preamble, 50 CFR parts 216, 223, and 224 are amended as follows: