Federal Register Vol. 81, No.185,

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 amends Class E airspace at Indiana County Airport (Jimmy Stewart Field), Indiana, PA.

On June 24, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to amend Class E airspace extending upward from 700 feet above the surface at Indiana County Airport (Jimmy Stewart Field), Indiana, PA, (81 FR 41279) Docket No. FAA-2016-6138, to accommodate the new runway at the airport. 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 7400.11A dated August 3, 2016, and effective September 15, 2016, 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 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A 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 amends Class E airspace extending upward from 700 feet above the surface within an 8.2-mile radius of Indiana County Airport (Jimmy Stewart Field), Indiana, PA, with a segment extending from the 8.2-mile radius to 13.6 miles east of the airport.

Airspace reconfiguration is necessary to support the new runway, and for continued safety and management of IFR operations at the airport. The geographic coordinates of the airport are adjusted to coincide with the FAA's aeronautical database.

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. 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 exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 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 amends Class D airspace and Class E airspace at Cape Cod Coast Guard Air Station, Falmouth, MA.

On June 21, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to amend Class D airspace and Class E airspace designated as an extension at Cape Cod Coast Guard Air Station, Falmouth, MA, (81 FR 40215) Docket No. FAA-2016-5444 as the Otis TACAN has been decommissioned, requiring airspace reconfiguration. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received. Subsequent to publication, the FAA found the geographic coordinates of the BOGEY LOM were incorrect. This action makes the correction.

Class D airspace and Class E airspace designations are published in paragraphs 5000, 6004, and 6005 respectively of FAA Order 7400.11A dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR part 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A 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 amends Class E airspace designated as an extension at Cape Cod Coast Guard Air Station, Falmouth, MA, realigning the segment extensions from the 4.4-mile radius of the airport to 6 miles northeast, 6 miles southeast, 7 miles southwest, and 6 miles northwest of the airport. Additionally, this action notes adjustment of the geographic coordinates of the above airport, as well as Falmouth Airpark, Barnstable Municipal Airport-Boardman/Polando Field, Chatham Municipal Airport, Martha's Vineyard Airport, and corrects the BOGEY LOM navigation aid, to coincide with the FAAs aeronautical database. Also, this action recognizes the name change of Cape Cod Coast Guard Air Station, (formerly OTIS ANGB), and Martha's Vineyard Airport, (formerly Martha's Vineyard Municipal Airport).

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. 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 exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 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 amends Class D and Class E airspace at Hagerstown Regional Airport-Richard A Henson Field, Hagerstown, MD.

On February 4, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to amend Class E Airspace Designated as an Extension to a Class D Surface Area at Hagerstown Regional Airport-Richard A Henson Field, Hagerstown, MD, (81 FR 5949) Docket No. FAA-2015-4513, by eliminating the NOTAM information, and changing the airport name and geographic coordinates. This action also amends the Class E Surface Area Airspace, previously omitted, for the airport. 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 D and E airspace designations are published in paragraphs 5000, 6002, 6004, and 6005 of FAA Order 7400.11A dated August 3, 2016, and effective September 15, 2016, which is incorporated by reference in 14 CFR part 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 6, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A 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 amends Class E Airspace designated as an extension to a Class D surface area at Hagerstown Regional Airport-Richard A. Henson Field, Hagerstown, MD, by eliminating the NOTAM information from the regulatory text that reads, “This Class E airspace area is effective during the specific dates and time established in advance by Notice to Airmen. The effective date and time will thereafter be continuously published in the Airport/Facility Directory.” This action also changes the airport name and ILS Localizer from Washington County Regional Airport to Hagerstown Regional Airport-Richard A. Henson Field, and adjusts the geographic coordinates of the airport in existing Class D and Class E Airspace.

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. 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 exist 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 amends Class E airspace at Glasgow Municipal Airport, Glasgow, KY.

On June 21, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) (81 FR 40217) Docket No. FAA-2016-6134, to amend Class E airspace extending upward from 700 feet above the surface at Glasgow Municipal Airport, Glasgow, KY, as the Beaver Creek Non-Directional Beacon (NDB) has been decommissioned, requiring airspace reconfiguration at the airport. 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 7400.11A dated August 3, 2016, and effective September 15, 2016, 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 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A 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 amends Class E airspace extending upward from 700 feet above the surface to within a 7.4-mile radius of Glasgow Municipal Airport, Glasgow, KY, and removes the segment extending 7 miles west of the NDB. Airspace reconfiguration is necessary due to the decommissioning of the Beaver Creek NDB, and for continued safety and management of IFR operations at the airport. The geographic coordinates of the airport are adjusted to coincide with the FAA's aeronautical database.

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. 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 exist that warrant preparation of an environmental assessment.

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

On June 10, 2016, we published a notice of proposed rulemaking (NPRM) in which we proposed to implement BBA section 812 by adding new sections to our rules that would explain when we would not consider evidence from an excluded medical source of evidence under section 223(d)(5)(C)(i) of the Act, as amended.1 We also identified five circumstances in which we proposed to find good cause to consider evidence that would otherwise be excluded. In addition, we proposed to require that excluded medical sources of evidence notify us of their excluded status under section 223(d)(5)(C)(i) of the Act, as amended, in writing, each time they furnish evidence to us in relation to a claim for initial or continuing benefits under titles II or XVI of the Act. We are adopting these proposed rules as final rules.

Congress enacted the BBA on November 2, 2015.2 BBA section 812 amended section 223(d)(5) of the Act, 42 U.S.C. 423(d)(5), by adding a new paragraph “C.” Under this provision, when we make a disability determination or decision or when we conduct a continuing disability review (CDR) under titles II or XVI of the Act, we cannot consider evidence furnished by certain medical sources unless we have good cause.3 Under these new rules, we may find good cause to consider evidence furnished by an excluded medical source of evidence in the following five situations:

The temporary regulations (TD 9776) that are the subject of this correction are under section 50 of the Internal Revenue Code.

As published, the temporary regulations (TD 9776) contain errors that may prove to be misleading and are in need of clarification.

Accordingly, 26 CFR part 1 is corrected by making the following correcting amendments:

The final regulations (TD 9774) that are the subject of this correction are under sections 446, and 6045 of the Internal Revenue Code.

As published, the final regulations (TD 9774) contains an error that may prove to be misleading and is in need of clarification.

Accordingly, the final regulations (TD 9774), that are the subject of FR Doc. 2016-16149, is corrected as follows:

1. On page 44512, in the preamble, the first column, under the heading “7. Accounting Method Changes”, the ninth line of the second full paragraph, the language “Proc. 2016-39 (2016-30 IRB), which” is corrected to read “Proc. 2016-39 (2016-30 IRB 164), which”.

Background

The final and temporary regulations (TD 9775) that are the subject of this correction are under section 501(c)(4) of the Internal Revenue Code.

As published, the final and temporary regulations (TD 9775) contain errors that may prove to be misleading and are in need of clarification.

Accordingly, the final and temporary regulations (TD 9775), that are the subject of FR Doc. 2016-16338, is corrected as follows:

1. On page 45010, in the preamble, the first column, the tenth line of the second full paragraph, the language “2016-41, 2016-30 IRB xxxx, which” is corrected to read “2016-41, 2016-30 IRB 165, which”.

2. On page 45010, in the preamble, the third column, under the paragraph heading “5. Separate Procedure by Which an Organization May Request an IRS Determination That It Qualifies for Section 501(c)(4) Exempt Status”, the twenty-first line of the first full paragraph, the language “prescribed in Revenue Procedure 2016-” is corrected to read “prescribed in Rev. Proc. 2016-”.

This final rule is needed to reduce the financial burden of PBGC's late premium penalties. The rulemaking reduces penalty rates for all plans and waives most of the penalty for plans that meet a standard for good compliance with premium requirements.

PBGC's legal authority for this action comes from section 4002(b)(3) of the Employee Retirement Income Security Act of 1974 (ERISA), which authorizes PBGC to issue regulations to carry out the purposes of title IV of ERISA, and section 4007 of ERISA, which gives PBGC authority to assess late payment penalties.

The penalty for late payment of a premium is a percentage of the amount paid late multiplied by the number of full or partial months the amount is late, subject to a floor of $25 (or the amount of premium paid late, if less). There are two levels of penalty, which heretofore have been 1 percent per month (with a 50 percent cap) and 5 percent per month (capped at 100 percent). The lower rate applies to “self-correction”—that is, where the premium underpayment is corrected before PBGC gives notice that there is or may be an underpayment. This final rule cuts the rates and caps in half (to 1/2 percent with a 25 percent cap and 21/2 percent with a 50 percent cap, respectively) and eliminates the floor.

The rulemaking also creates a new penalty waiver that applies to underpayments by plans with good compliance histories if corrected promptly after notice from PBGC. PBGC will waive 80 percent of the penalty assessed for such a plan.

PBGC administers the pension plan termination insurance program under title IV of the Employee Retirement Income Security Act of 1974 (ERISA). Under ERISA sections 4006 and 4007, plans covered by title IV must pay premiums to PBGC. PBGC's premium regulations—on Premium Rates (29 CFR part 4006) and on Payment of Premiums (29 CFR part 4007)—implement ERISA sections 4006 and 4007.

ERISA section 4007(b)(1) provides that if a premium is not paid when due, PBGC is authorized to assess a penalty up to 100 percent of the overdue amount. The statute does not condition exercise of this authority on a finding of bad faith or lack of due care; it is solely based on the failure to pay.1 However, the fact that assessment is authorized (rather than mandated)—and thus that PBGC could choose not to exercise the authority at all—indicates that PBGC has the flexibility to assess less than the full amount of penalty authorized and to reduce or eliminate a penalty.2

PBGC has provided for the exercise of its authority to impose penalties in the premium payment regulation. Under § 4007.8 of the regulation, late payment penalties accrue at the rate of 1 percent or 5 percent per month (or portion of a month) of the unpaid amount, except that the smallest penalty assessed is the lesser of $25 or the amount of unpaid premium. Whether the 1-percent or 5-percent rate applies depends on whether the underpayment is “self-corrected” or not. Self-correction refers to payment of the delinquent amount before PBGC gives written notice of a possible delinquency. One-percent penalties are capped by the regulation at 50 percent and 5-percent penalties at 100 percent of the unpaid amount. Although penalties can be significant in some cases, they are generally assessed in amounts far less than the statutory maximum.

This two-tiered structure provides an incentive to self-correct and reflects PBGC's judgment that those that come forward voluntarily to correct underpayments deserve more forbearance than those that PBGC identifies through its premium enforcement programs.

The premium payment regulation and its appendix also authorize waivers of late premium payment penalties. For example, § 4007.8(f) provides an automatic waiver for cases where premiums are not more than seven days late. The regulation and appendix also provide for waivers based on facts and circumstances and give detailed guidance about some specific grounds for waivers, such as where there is reasonable cause for the late payment.3 PBGC may also waive penalties where it finds that there are other appropriate circumstances.4

On April 28, 2016 (at 81 FR 25363), PBGC published a proposed rule to reduce penalty rates for late payment of annual (flat- and variable-rate) premiums and create a new automatic waiver of 80 percent of penalties at the higher rate for plans that demonstrate good compliance.5 PBGC sought public comment on its proposal. Four comments were received. Three commenters supported the proposal. The other commenter expressed opposition, citing the importance of plan funding and payment of premiums. PBGC believes, as discussed below, that the reduction of premium late-payment penalties it is implementing will not adversely affect premium payments; and by reducing the cost of maintaining a plan, the penalty reduction appears more likely to improve than impair plan funding.

One commenter that supported the proposal urged PBGC to go further and apply the new penalty rules to all unresolved premium penalty cases. PBGC is adhering to its proposal to apply the new rules to premiums for plan years beginning after 2015. Future applicability is a reasonable approach for all kinds of new rules, whether more lenient (as here) or stricter. And to apply the new rules to some but not all late premium payments for pre-2016 years could be seen as an inequitable approach. A plan that corrected promptly—and whose case was therefore closed—would not get the benefit of the new, lower penalties; whereas one that delayed would be subject to lower penalties if its case was still open.

However, PBGC has concluded that—in pending requests for reconsideration for pre-2016 years—it is appropriate to use its pre-existing discretionary authority to take account of good compliance and prompt correction, among other facts and circumstances. While such exercises of discretion cannot be expected to turn on the same factual analysis or provide the same result as this final rule, they represent a similar quality of consideration as that provision.

The same commenter also urged PBGC to consider similar relief on a case-by-case basis for cases that have already been resolved under pre-amendment rules. The comment focused particularly on penalties that were large and “disproportionate” (under the circumstances) and arose from “inadvertence.” PBGC is not persuaded to take this course.

Because larger penalties correlate with larger premiums, larger plans, and larger employers, relief focused on larger penalties would be focused away from smaller plans and employers—at odds with PBGC's goal of reducing burden for small entities. And since virtually every failure to pay premiums timely is inadvertent, inadvertence is neither a useful nor an appropriate criterion for granting penalty relief. Further, “disproportionality” is a subtle and subjective standard that could take time to apply consistently to a large number of cases. And significantly, the principle of finality is important in avoiding perpetual uncertainty about the outcomes of disputes. PBGC considers it inappropriate to reopen cases properly closed.

PBGC is adopting the penalty relief it proposed but is clarifying the operation of the 80-percent waiver for compliant plans, as discussed below.

Over the years—especially in recent years—Congress has significantly increased PBGC premium rates. Since late payment penalties are a percentage of unpaid premium, the penalties have gone up in proportion to the increase in premiums. While it is not unfair to impose larger penalties for late payment of larger amounts, PBGC is sensitive to the fact that a penalty assessed today may be several times what would have been assessed years ago for the same acts or omissions involving a plan with the same number of participants and the same unfunded vested benefits.

PBGC has good reason to believe that smaller penalties will provide an adequate incentive for compliance by premium payers. PBGC's experience has been that compliance with the premium payment requirements is influenced primarily by the consistency of PBGC's penalty assessment activities, and only secondarily by the size of penalties assessed. PBGC observes that in most cases, a late payment is inadvertent and that assessment of a penalty sparks improvement of a plan's compliance systems whether the penalty is large or small. This experience supports the conclusion that if PBGC continues its current consistent enforcement efforts, assessing significantly lower penalties will yield a satisfactory level of compliance.

Accordingly, PBGC is cutting penalty rates and caps in half, so that the lower (self-correction) rate will be 1/2 percent with a 25 percent cap, and the higher rate will be 21/2 percent with a 50 percent cap. PBGC is also eliminating the floor on penalty assessments, so that if the penalty assessment formula generates a penalty less than $25, it will not be automatically inflated to the floor amount.

Applying a lower penalty rate to self-correction recognizes that it is desirable for a plan to catch and fix its own mistakes, whatever its compliance history may be. PBGC has given this matter further thought and concluded that a demonstrated commitment to premium compliance is also worthy of recognition, even if a plan corrects an underpayment (of which it is likely unaware) only after notice from PBGC. PBGC believes such a commitment is evidenced where a plan has a history of consistent compliance and acts promptly to correct an underpayment when notified by PBGC. PBGC will therefore automatically waive 80 percent of penalties assessed at the higher (21/2-percent) rate where the following two conditions are satisfied.

The first condition is that the plan have a five-year record of premium compliance. Generally, this means timely payment of all premiums for the five plan years preceding the year of the delinquency, as shown by the plan's premium filings. However, a late payment will not count against a plan if PBGC did not require payment of a penalty, such as where there was a waiver of the entire penalty. A plan that was not in existence as a covered plan for the full five years will be judged on its coverage years.

The second condition is prompt correction. Prompt correction, for this purpose, means that the premium shortfall for which a penalty is being assessed is made good no later than 30 days after PBGC notifies the plan in writing that there is or might be a problem. In other words, a plan that meets the first condition, and is assessed penalty at the 21/2-percent rate, will qualify for an automatic 80-percent reduction if the premium shortfall is paid within 30 days.

PBGC has made two clarifying changes to the proposed regulatory text describing the 80-percent waiver. The amount waived is now described as 80 percent of the amount “assessed,” rather than the amount “otherwise applicable.” And the amount that must have been paid by the end of the 30-day period is now described as the “total amount of premium” for the year, rather than the “amount of unpaid premium.” PBGC feels that the new formulations are clearer and more definite.

PBGC typically discovers the most common premium payment errors fairly quickly—errors like failing to pay, sending payment that doesn't match the information filed, and so forth—and generally notifies plans of their delinquencies within a month or two after the due date. Thus, a plan that corrects an underpayment before or promptly after notice from PBGC typically owes no more than a few months' penalty.

For example, if a plan paid a $1 million premium two months late (after notice from PBGC), the penalty under the regulation as it existed before this amendment would be $100,000 (two months times 5 percent times $1 million). Under the revised regulation, the penalty would be $50,000 (two months times 21/2 percent times $1 million). If the plan qualified for the compliant plan partial waiver, the penalty would be reduced by 80 percent, from $50,000 to $10,000.

In a typical case, the changes in this final rule will in effect make the penalty rate for compliant plans the same as the “self-correction” penalty rate. In clarification of the preamble to the proposed rule, however, this will not be true in the unusual case where a penalty cap comes into play. For while the penalty rates for self-correctors and others are in the ratio of one to five, the caps are in the ratio of one to two.

The effect of the changes is summarized in the following table on the assumption that the penalty caps do not come into play.

PBGC has determined, in consultation with the Office of Management and Budget, that this final rule is not a “significant regulatory action” under Executive Order 12866.

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, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

PBGC does not expect this final rule to cause a significant change in premium compliance patterns. As noted above, PBGC's experience is that prompt assessment, rather than amount, is the key to using penalties as a compliance tool. A reduction in the penalty cost of late payment is unlikely to reduce the incidence of late payment, but is also unlikely to encourage late payment: no penalty is better than a low penalty. Thus, the primary effect of the rule will be to save money for delinquent plans and reduce PBGC's penalty receipts. But PBGC assesses penalties not to generate income but to encourage compliance and sanction non-compliance. If PBGC can achieve the same level of timely payment while assessing lower penalties, higher penalties are inappropriate. And lower penalties may tend to encourage the continuation and adoption of defined benefit plans, a favorable outcome for plan participants.

PBGC estimates that this rule will reduce penalty assessments for late payment of premiums by $2 million per year.

This final rule is associated with retrospective review and analysis in PBGC's Plan for Regulatory Review issued in accordance with Executive Order 13563.

The Regulatory Flexibility Act imposes certain requirements with respect to rules that are subject to the notice and comment requirements of section 553(b) of the Administrative Procedure Act and that are likely to have a significant economic impact on a substantial number of small entities. Unless an agency determines that a final rule is not likely to have a significant economic impact on a substantial number of small entities, section 604 of the Regulatory Flexibility Act requires that the agency present a final regulatory flexibility analysis at the time of the publication of the final rule describing the impact of the rule on small entities and steps taken to minimize the impact. Small entities include small businesses, organizations and governmental jurisdictions.

For purposes of the Regulatory Flexibility Act requirements with respect to this final rule, PBGC considers a small entity to be a plan with fewer than 100 participants. This is substantially the same criterion PBGC uses in other regulations 6 and is consistent with certain requirements in title I of ERISA 7 and the Internal Revenue Code,8 as well as the definition of a small entity that the Department of Labor (DOL) has used for purposes of the Regulatory Flexibility Act.9 Using this proposed definition, about 64 percent (16,700 of 26,100) of plans covered by title IV of ERISA in 2010 were small plans.10

Further, while some large employers may have small plans, in general most small plans are maintained by small employers. Thus, PBGC believes that assessing the impact of the final rule on small plans is an appropriate substitute for evaluating the effect on small entities. The definition of small entity considered appropriate for this purpose differs, however, from a definition of small business based on size standards promulgated by the Small Business Administration (13 CFR 121.201) pursuant to the Small Business Act. PBGC therefore requested comments on the appropriateness of the size standard used in evaluating the impact of the proposed rule on small entities. PBGC received no comments on this point.

PBGC certifies under section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) that the amendments in this rule would not have a significant economic impact on a substantial number of small entities. Accordingly, as provided in section 605 of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), sections 603 and 604 do not apply. This certification is based on the fact that small plans generally pay small premiums and thus small penalties for late payment of premiums. The average late premium penalty paid by a small plan for the 2014 plan year was about $160. This proposed rule would cut penalty payments in half, and thus create an average annual net economic benefit for each small plan of about $80. This is not a significant impact.

In consideration of the foregoing, PBGC amends 29 CFR part 4007 as follows:

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

From May 18 through October 16, 2015, a test deviation assessing the viability of the schedule implemented in this rule was in effect for the New River Bridge (80 FR 28184). The comment period ended on August 17, 2015. There were eight comments received in response to the test deviation. The comments from the test deviation were addressed in the notice of proposed rulemaking (NPRM).

On November 3, 2015, we published a NPRM entitled Drawbridge Operation Regulation; New River, Fort Lauderdale, FL in the Federal Register (80 FR 67677). We received 234 submissions on the proposed rule.

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

The FEC Railroad Bridge across the New River, mile 2.5, at Fort Lauderdale, FL is a single leaf bascule bridge. It has a vertical clearance of 4 feet at mean high water in the closed position. Presently, in accordance with 33 CFR 117.5, the FEC Railroad Bridge is required to open on signal for the passage of vessels. Traffic on the waterway includes both commercial and recreational vessels.

Prior to implementing a test deviation on May 18, 2015, the Bridge operated without a tender or monitor. An automated system closed the Bridge when a train approached and reopened the Bridge when a train cleared. The Coast Guard received multiple complaints from mariners because there was no means of obtaining notice of bridge closure times or potential closure duration. The new regulation balances the reasonable needs of waterway traffic on the New River with train traffic moving through condensed population areas in Ft. Lauderdale.

This regulation was developed to accommodate the unique needs of rail transportation in South Florida while balancing the reasonable needs of maritime transportation on the New River. Train schedules at the crossings cannot be precisely scheduled due to unpredictable delays caused by train car loading and vehicular traffic crossing the track. Also, train bridges must be in the down position well in advance of the train's arrival to ensure that it can safely cross the bridge or stop if there are problems with the Bridge.

Two hundred thirty-four submissions were received resulting in a total of 319 comments concerning the proposed rule. The total number of comments exceeds the number of submissions because some submissions expressed more than one point in their comment. Of these comments, 39 were in favor of the proposed rule. Forty-nine of the comments expressed opposition to a future rail project, which is not the focus of this regulation, and were not relevant.

Sixty-six comments expressed opposition to the regulation of Bridges other than the Florida East Coast Railway (FEC) Railroad Bridge. This regulation only pertains to the FEC Railroad Bridge over the New River in Fort Lauderdale.

Eleven comments opposed the proposed modification and recommended the Bridge owner provide a train schedule with specified opening times. In respect to a schedule the on-site bridge tender will provide a 12-hour forecast schedule to waterway users upon request. However, scheduling bridge openings is not viable because trains typically experience loading and traffic delays that interfere with the operator's ability to precisely identify an exact time when the train will cross the waterway.

Eighteen comments stated the modification would create unsafe vessel congestion near the Bridge. This regulation allows mariners to communicate with a bridge tender and receive updates on the Bridge's status; thereby relieving congestion that exists with the current schedule.

Sixty-four comments opposed the Bridge being closed 50 percent of the time or 60 minutes at a time. These comments also recommended various minimum time limits for bridge openings. This regulation does not require closing the Bridge 50 percent of the time or for 60 minutes at one time. It sets a maximum time for the Bridge's closure within a two hour period. This regulation authorizes a total combined closure time for any given 120 minute period that will not exceed 60 minutes. Moreover, if a train is not crossing or approaching, the Bridge will remain open. Based on input from the bridge owner and input gathered at Coast Guard public meetings, the Coast Guard determined that it is not a viable option to require minimum time limits for the bridge to be open at one time because trains would have considerable difficulty coordinating passage across the bridge with this schedule. Therefore, this regulation does not adopt alternatives to set minimum time limits for Bridge openings. Vessels can transit at all times that trains are not crossing.

Thirteen comments expressed concern that the modification would hinder emergency vessels from responding. This regulation requires the Bridge to open immediately for emergency vessels to pass.

Twenty-six comments expressed safety concerns for vehicle traffic in the area and emergency vehicle response times being delayed. This regulation seeks to balance the needs of rail and maritime navigation by allowing the Bridge to close for the passage of trains. By doing so, it seeks to ensure passing trains are not delayed by the Bridge schedule, therefore, it should alleviate surrounding vehicular traffic.

There were 26 comments that addressed concern that the modification would decrease property values and hurt business in the area. The Coast Guard does not have evidence that this regulation will result in a decrease in property values or that it will adversely affect businesses in the area.

Five commenters requested bridge modifications that would replace and raise the vertical height of the bridge, and to require mooring stations for waiting vessels, which is outside of the scope of this rule because this rule only amends the opening schedule for the Bridge by creating protocols that will make it easier for vessel traffic to schedule transits during times the Bridge is open.

Two of the 234 commenters requested a public meeting. A public meeting was held on 12 November 2014 (USCG-2014-0937), and the proposed schedule modification was developed from the input received from the public meeting.

The Coast Guard also received complaints about the high noise levels of the horn blast prior to a bridge closure. The prescribed sound signal has typically been required on all unmanned automated rail road bridges. We are removing the requirement for the horn blast from the regulation since the bridge is no longer unmanned. Other than the removal of horn blasts, 33 CFR 117.313 is modified as was proposed in the NPRM.

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

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

This regulatory action determination is made because vessels can still transit the waterway at times identified by the tender 12 hours in advance of the scheduled transit. Also, vessels can transit at all times that trains are not crossing or if they do not require a bridge opening to transit.

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

This rule may affect the following entities, some of which might be small entities: The owners or operators of vessels needing to transit the bridge when the Bridge is closed for train crossings. This change in operating schedule will still meet the reasonable needs of navigation while taking into account other modes of transportation. Vessels transiting the New River at mile 2.5 may do so at times scheduled up to 12 hours prior to transit. Also, vessels can transit at all times that trains are not crossing.

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

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

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

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

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

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA)(42 U.S.C. 4321-4370f), and have made a determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule simply promulgates the operating regulations or procedures for drawbridges. This action is categorically excluded from further review, under figure 2-1, paragraph (32)(e), of the Instruction.

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

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

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

On March 11, 2016, the Coast Guard published a temporary deviation entitled “Drawbridge Operation Regulation; North Landing River, Chesapeake, VA” in the Federal Register (81 FR 12824); on April 8, 2016, the Coast Guard published a modified temporary deviation entitled “Drawbridge Operation Regulation; North Landing River, Chesapeake, VA” in the Federal Register (81 FR 20529); and on June 29, 2016, the Coast Guard published a modified temporary deviation entitled “Drawbridge Operation Regulation; North Landing River, Chesapeake, VA” in the Federal Register (81 FR 42248). These documents were necessary to authorize a temporary deviation from the operating regulations to perform repairs to the south swing span of the bridge due to damage sustained as a result of a vessel allision with the bridge that occurred on March 1, 2016. The United States Army Corps of Engineers, Norfolk District Office, who owns and operates the S165 (North Landing Road) Bridge, has requested a modified temporary deviation from the current operating regulations to perform repairs to the south swing span of the bridge, following receipt of replacement parts scheduled to arrive in the first week of October 2016. The modified temporary deviation request is necessary to receive the replacement parts in the first week of October 2016 and allow for sufficient time to complete repairs to the bridge.

The current operating scheduled is set out in 33 CFR 117.1021. Under this modified temporary deviation, the north span of the bridge will open-to-navigation on the hour and half hour, upon request, from 6 a.m. to 7 p.m., and on demand from 7 p.m. to 6 a.m. The north and south spans of the bridge will open to navigation concurrently, with the south span only opening partially due to damage, upon request, for: (1) Scheduled openings at 9:30 a.m. for vessels transiting southeast, (2) 10:30 a.m. for vessels transiting northwest, and (3) at noon and 2 p.m. for two-way vessel traffic through the bridge, Monday through Friday, from Friday, September 30, 2016, through Monday, October 10, 2016. The north and south spans of the bridge will open to navigation concurrently, with the south span only opening partially due to damage, upon request, for: (1) Scheduled openings at 9:30 a.m. for vessels transiting southeast and (2) 10:30 a.m. for vessels transiting northwest, Saturday and Sunday, from Saturday, October 1, 2016, through Sunday, October 9, 2016. The north and south spans of the bridge will open to navigation concurrently, with the south span only opening partially due to damage, for additional on demand openings from October 4, 2016, through October 10, 2016, if 48 hours notice is given. The south span of the bridge will be closed-to-navigation during bridge repair from 9 a.m., October 11, 2016, through 4 p.m., October 14, 2016. The horizontal clearance of the bridge with the south span closed-to-navigation is 38 feet and the horizontal clearance of the bridge with the south span partially open-to-navigation is 70 feet. The modified temporary deviation is necessary to relieve vessel congestion and provide for safe navigation on the waterway. The bridge is a double swing draw bridge and has a vertical clearance in the closed position of 6 feet above mean high water.

The North Landing River is used by a variety of vessels including small U. S. government and public vessels, small commercial vessels, tug and barge, and recreational vessels. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway in publishing this temporary deviation.

During the closure times there will be limited opportunity for vessels which are able to safely pass through the bridge in the closed position to do so. Vessels able to safely pass through the bridge in the closed position may do so, after receiving confirmation from the bridge tender that it is safe to transit through the bridge. The north span of the bridge will be able to open for emergencies. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transit to minimize any impact caused by the modified temporary deviation.

In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking §  Section U.S.C. United States Code II. Background Information and Regulatory History

On December 27, 2015, the Coast Guard received an Application for Marine Event for the Tough Cup event that will be held from 6:30 a.m. to 1 p.m. on September 24, 2016, on the South Branch of the Chicago River and the Chicago Sanitary and Ship Canal between the Illinois Northern Bridge and the Loomis Street Highway Bridge. In response, on July 1, 2016, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Safety Zone; South Branch of the Chicago River and Chicago Sanitary and Ship Canal, Chicago, IL” (81 FR 43178). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this event. During the comment period that ended July 31, 2016, we received two comments.

We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. To provide an opportunity for comment, as opposed to not issuing an NPRM, we issued the NPRM knowing it would be impracticable not to make a final rule effective less than 30 days after it is published. Delaying the effective date of this rule to wait for a comment period to run would be impracticable because it would inhibit the ability to protect the public and vessels from the hazards associated with a race involving personal watercraft to take place on September 24, 2016.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Lake Michigan (COTP) has determined that the potential hazards associated with vessels transiting through a narrow and congested section of the river during the Tough Cup event will pose concerns for all vessels navigating in the area. The purpose of this rule is to ensure the safety of spectators, vessels participating in the event and all vessels operating in the vicinity of the scheduled event.

As noted above, we received two comments on our NPRM published July 1, 2016. One comment stated concerns with the notification to the public being sufficient for the proposed rule. The Coast Guard has provided notice required by the Administrative Procedures Act (5 U.S.C. 553) and will also provide notification by issuing a Broadcast Notice to Mariners via VHF-FM marine channel 16. To further address the concern of sufficient notification, the Coast Guard will include a notification in the Local Notice to Mariners publication. The second comment received was supportive of the event and related waterway restriction. There is one change in the regulatory text of this rule from the proposed rule in the NPRM to include the additional notification in the Local Notice to Mariners publication. This rule establishes a safety zone from 6:30 a.m. to 1 p.m. on September 24, 2016. The safety zone will cover all navigable waters on the South Branch of the Chicago River and the Chicago Sanitary and Ship Canal between the Illinois Northern Bridge and the Loomis Street Highway Bridge in Chicago, IL. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled Tough Cup event. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

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

We conclude that this rule is not a significant regulatory action because we anticipate that it will have minimal impact on the economy, will not interfere with other agencies, will not adversely alter the budget of any grant or loan recipients, and will not raise any novel legal or policy issues. The safety zone created by this rule will be relatively small and enforced for a short duration on the one day this rule will be in effect to ensure safety of spectators and participants at this scheduled event. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the safety zone, a notification in the Local Notice to Mariners publication, and the rule would allow vessels to seek permission to enter the zone.

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

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator. Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order13132.

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

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

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

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

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

On June 22, 2016, VA published in the Federal Register an interim final rule adjusting the amounts of civil monetary penalties that VA may assess against participants who make certain false certifications or who engage in fraudulent activity. See 81 FR 40523. The interim final rule increased maximum civil monetary penalties from $10,000 to $21,563 for false loan guaranty certifications and from $5,500 to $10,781 for fraudulent claims or fraudulent statements in any VA program.

VA published the interim final rule to implement the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act) (Sec. 701 of Pub. L. 114-74), which amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (the Inflation Adjustment Act) (Pub. L. 101-410), to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. In calculating the adjusted amounts, VA relied on guidance from The Executive Office of the President Office of Management and Budget (OMB), published on February 24, 2016, advising the heads of federal agencies how to implement the 2015 Act. See https://www.whitehouse.gov/sites/default/files/omb/memoranda/2016/m-16-06.pdf.

VA received one comment in response to the interim final rule. The comment was a photograph that was not relevant to the rulemaking. The photograph was not posted to www.regulations.gov. VA is adopting the interim final rule without change.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” which requires review by OMB, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined that it is not a significant regulatory action under Executive Order 12866.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This interim final rule will have no such effect on State, local, and tribal governments, or on the private sector.

This interim final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Accordingly, no proposed rulemaking was required in connection with the adoption of this final rule. Pursuant to 5 U.S.C. 605(b), this final rule is exempt from the initial and final regulatory flexibility analyses requirements of sections 603 and 604.

The Catalog of Federal Domestic Assistance number and title for the program affected by this document is 64.114, Veterans Housing—Guaranteed and Insured Loans.

The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on September 16, 2016, for publication.

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2013-0226 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before November 22, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2013-0226, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of March 16, 2016 (81 FR 14030) (FRL-9942-86), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 5F8404) by Bayer CropScience LP, 2 T.W. Alexander Drive, P.O. Box 12014, Research Triangle Park, NC 27709. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the insecticide, flupyradifurone, in or on abiu at 0.6 parts per million (ppm); akee apple at 0.6 ppm; avocado at 0.6 ppm; bacury at 0.6 ppm; banana at 0.6 ppm; binjai at 0.6 ppm; caneberry, subgroup 13-07A at 5 ppm; canistel at 0.6 ppm; cilantro, fresh leaves at 30 ppm; cupuacú at 0.6 ppm; etambe at 0.6 ppm; jatobá at 0.6 ppm; kava, fresh leaves at 40 ppm; kava, roots at 0.9 ppm; kei apple at 0.6 ppm; langstat at 0.6 ppm; lanjut at 0.6 ppm; lucuma at 0.6 ppm; mabolo at 0.6 ppm; mango at 0.6 ppm; mangosteen at 0.6 ppm; paho at 0.6 ppm; papaya at 0.6 ppm; pawpaw, common at 0.6 ppm; pelipisan at 0.6 ppm; pequi at 0.6 ppm; pequia at 0.6 ppm; persimmon, american at 0.6 ppm; plantain at 0.6 ppm; pomegranate at 0.6 ppm; poshte at 0.6 ppm; quandong at 0.6 ppm; quinoa at 3 ppm; sapote at 0.6 ppm; sataw at 0.6 ppm; screw-pine at 0.6 ppm; star apple at 0.6 ppm; stone fruit, stone group 12-12 at 1.5 ppm; tamarind-of-the-Indies at 0.6 ppm; and wild loquat at 0.6 ppm. That document referenced a summary of the petition prepared by Bayer CropScience LP, the registrant, which is available in the docket, http://www.regulations.gov. Comments were received on the notice of filing. EPA's response to these comments is discussed in Unit IV.C.

Based upon review of the data supporting the petition, EPA has modified some of the commodity definitions that were proposed. The reason for these changes are explained in Unit IV.D.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for flupyradifurone including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with flupyradifurone follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

The most sensitive effects seen in the flupyradifurone database were skeletal muscle atrophy/degeneration in dogs. With repeated dosing, reductions in body weight and food consumption were commonly seen in various studies and in all species of test animals (rats, mice, dogs, and rabbits). The liver and thyroid were shown to be the common findings of flupyradifurone toxicity. The database appears to suggest that dogs are more sensitive to the effects of flupyradifurone; however, with body weight adjustments (based on a 3/4 scaling factor), the dog and rat are almost equally as sensitive in response to flupyradifurone toxicity. The skeletal muscle atrophy/degeneration seen in the 90-day and 1-year dog studies formed the basis for chronic dietary exposure toxicity endpoints.

The developmental toxicity study in rats demonstrated no evidence of susceptibility in developing animals. In the rabbit developmental toxicity study, there was an increase in the incidence of fetal death at 80 milligram/kilogram/day (mg/kg/day) (the highest dose tested), a dose that did not produce adverse effects in the maternal animals.

Therefore, a quantitative increase in susceptibility was demonstrated in the rabbit developmental toxicity study. In the 2-generation reproduction study in rats, decreased parental body weights (≥10%) were seen at the lowest-observed-adverse-effect-level (LOAEL) of 137 mg/kg/day (parental no-observed-adverse-effect-level (NOAEL) = 37.8 mg/kg/day). In contrast, body weight decreases that were considered adverse were seen in F2 pups at 37.8 mg/kg/day (the parental NOAEL and the offspring LOAEL; offspring NOAEL = 7.7 mg/kg/day). These findings suggest quantitative susceptibility for developing young animals.

The acute neurotoxicity study (dosing by gavage) showed that at the time of peak-effect, flupyradifurone caused increases in the incidence of piloerection and dilated pupils at 50 mg/kg. At the next higher dose level (200 mg/kg) and above, it produced a large host of clinical signs, which were related to neurotoxicity. The clinical signs included dilated pupils, lower muscle tone, low arousal, tremors, myoclonic jerks, chewing, repetitive licking of lips, gait incoordination, flattened or hunched posture, and impaired righting reflex. In the 90-day neurotoxicity study, no neurotoxicity or other adverse effects were seen at dose levels as high as 174 mg/kg/day. The developmental neurotoxicity study at 102 mg/kg/day yielded an increased incidence of increased amplitude in startle response.

Flupyradifurone is classified as “not likely to be carcinogenic to humans.” Carcinogenicity studies in rats and mice did not yield a compound-related increase in tumor incidence, and the genotoxicity battery did not show flupyradifurone to produce any genotoxicity. Flupyradifurone did not demonstrate any immunotoxic effects.

Specific information on the studies received and the nature of the adverse effects caused by flupyradifurone as well as the NOAEL and the LOAEL from the toxicity studies can be found at http://www.regulations.gov in the document titled “Flupyradifurone (122304) Human Health Risk Assessment in Support of Proposed Uses on Kava, Cilantro, Stone Fruit, Group 12-12, Caneberry, Subgroup 13-07A, Quinoa, and Tropical Fruits; Amended Use Requests for Soil Applications to Leafy Vegetables, Group 4 and Brassica (Cole) Leafy Vegetables, Group 5; Use on Greenhouse Grown Tomato, Pepper, Cucumber, and Lettuce; Label Amendment to Add Commodities of Tree Nuts, Group 14-12 to label; and Label Amendment to Add Use Directions for Clover Grown for Forage, Fodder, Seed, Straw, and Hay” on page 49 in docket ID number EPA-HQ-OPP-2013-0226.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.

A summary of the toxicological endpoints for flupyradifurone used for human risk assessment is shown in Table 1 of this unit.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to flupyradifurone, EPA considered exposure under the petitioned-for tolerances as well as all existing flupyradifurone tolerances in 40 CFR 180.679. EPA assessed dietary exposures from flupyradifurone in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure.

Such effects were identified for flupyradifurone. In estimating acute dietary exposure, EPA used food consumption data from the United States Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA; 2003-2008). As to residue levels in food, EPA assumed 100% crop treated (PCT), tolerance level residues and Dietary Exposure Evaluation Model (DEEM) (ver. 7.81) default processing factors.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the food consumption data from the USDA's NHANES/WWEIA; 2003-2008. As to residue levels in food, EPA assumed 100 PCT, tolerance level residues and DEEM (ver. 7.81) default processing factors.

iii. Cancer. Based on the data summarized in Unit III.A., EPA has concluded that flupyradifurone does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv. Anticipated residue and PCT information. EPA did not use anticipated residue or PCT information in the dietary assessment for flupyradifurone. Tolerance level residues and 100 PCT were assumed for all food commodities.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for flupyradifurone in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of flupyradifurone. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/about-water-exposure-models-used-pesticide.

Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS), Tier 1 Rice Model and Pesticide Root Zone Model Ground Water (PRZM GW) model, the estimated drinking water concentrations (EDWCs) of flupyradifurone for acute exposures are estimated to be 112 parts per billion (ppb) for surface water and 352 ppb for ground water, and for chronic exposures are estimated to be 112 ppb for surface water and 307 ppb for ground water.

Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For the acute dietary risk assessment, the water concentration value of 352 ppb was used to assess the contribution to drinking water. For the chronic dietary risk assessment, the water concentration of value 307 ppb was used to assess the contribution to drinking water.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Currently there are no registered uses for flupyradifurone that could result in residential exposures. However, there is a proposal to register uses that could result in residential exposures for application to ornamental plants (gardens, trees, shrubs, flowers). Therefore, the EPA considered the proposed residential uses and assessed residential exposure using the following assumptions: For residential handlers, short-term dermal and inhalation exposures were assessed for adults mixing, loading and applying liquids and ready to use formulations to gardens and trees using a variety of application equipment. For post-application exposure, short-term dermal exposures to adults and children (6 to <11 years old) to gardens, trees, and retail plants and indoor plants was evaluated. Only short-term residential exposures are expected. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found flupyradifurone to share a common mechanism of toxicity with any other substances, and flupyradifurone does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that flupyradifurone does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

2. Prenatal and postnatal sensitivity. There is no evidence that flupyradifurone produces increased susceptibility in in the rat developmental study. There is quantitative increase in susceptibility in the rabbit developmental and rat reproduction studies. In the rabbit developmental study, no maternal effect was seen at the highest tested dose (80 mg/kg/day), while there was an increase in fetal death and decrease fetal body weight at the same dose level. In the rat reproduction study, maternal effect, decrease in body weight, was seen at 137 mg/kg/day, whereas decreases in pup body weight was seen at the next lower dose, 38.7 mg/kg/day or above. However, the PODs selected for risk assessment are protective of the quantitative susceptibility seen in the rabbit fetuses and rat pups.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1x. That decision is based on the following findings:

i. The toxicity database for flupyradifurone is complete.

ii. Although there is evidence that flupyradifurone has neurotoxic effects, EPA has a complete set of neurotoxicity studies (acute, subchronic, and developmental). The effects of those studies are well-characterized and indicate neurotoxic effects that occur at levels above the chronic POD that was selected for risk assessment. The NOAEL for the acute neurotoxicity study is being used for the acute POD. Therefore, there is no need to retain the 10X FQPA SF to account for any uncertainty concerning these effects.

iii. There is no evidence that flupyradifurone results in increased susceptibility in in utero rats. There is quantitative increase in susceptibility in the rabbit developmental and rat reproduction studies. However, the PODs selected for risk assessment are protective of the quantitative susceptibility seen in the rabbit fetuses and rat pups.

iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100 PCT and tolerance-level residues. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to flupyradifurone in drinking water. EPA used similarly conservative assumptions to assess the proposed residential post-application exposure of children. These assessments will not underestimate the exposure and risks posed by flupyradifurone.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to flupyradifurone will occupy 37% of the aPAD for children 1-2 years old, the population group receiving the greatest exposure.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to flupyradifurone from food and water will utilize 86% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of flupyradifurone is not expected.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). For flupyradifurone there are uses pending which the Agency has included in this action that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to flupyradifurone.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and proposed residential exposures result in aggregate MOEs of 170 for adults and 190 for children (6 to <11 years old). Because EPA's level of concern for flupyradifurone is a MOE of 100 or below, these MOEs are not of concern.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

An intermediate-term adverse effect was identified; however, flupyradifurone is not registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for flupyradifurone.

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, flupyradifurone is not expected to pose a cancer risk to humans.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to flupyradifurone residues.

An adequate analytical method (Method RV-001-P10-03) which uses high-performance liquid chromatography with tandem mass spectrometry (HPLC/MS/MS) to quantitate residues of flupyradifurone and difluoroacetic acid (DFA) in various crops is available for enforcement.

The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: [email protected].

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established any MRLs for flupyradifurone.

EPA received two comments to the Notice of Filing. The first stated, in part, that EPA should deny this petition because it is a harmful and toxic chemical. The Agency understands the commenter's concerns and recognizes that some individuals believe that pesticides should be banned on agricultural crops. However, the existing legal framework provided by section 408 of the Federal Food, Drug and Cosmetic Act (FFDCA) states that tolerances may be set when persons seeking such tolerances or exemptions have demonstrated that the pesticide meets the safety standard imposed by that statute. EPA has assessed the effects of this chemical on human health and determined that aggregate exposure to it will be safe. This citizen's comment appears to be directed at the underlying statute and not EPA's implementation of it; the citizen has made no contention that EPA has acted in violation of the statutory framework.

The second comment was from Interregional Research Project Number 4 (IR-4) and was in support of the petition.

Bayer CropScience LP petitioned for tolerances on abiu, akee apple, avocado, bacury, banana, binjai, canistel, cupuacú, etambe, jatobá, kei apple, langstat, lanjut, lucuma, mabolo, mango, mangosteen, paho, papaya, common pawpaw, pelipisan, pequi, pequia, American persimmon, plantain, pomegranate, poshte, quandong, sapote, sataw, screw-pine, star apple, tamarind-of-the-Indies, and wild loquat. These commodities are all listed in the newly established crop subgroup 24B for tropical and subtropical, medium to large fruit, with a smooth, inedible peel. Subgroup 24B further breaks out the different types of avocado (to include Guatemalan, Mexican, and West Indian avocado), mango (to include horse and Saipan mango), and sapote (to include black, green, and white sapote). Although the petitioner did not specify any particular kind of avocado, mango, and sapote, the Agency considers the request for avocado, mango, and sapote to be general in nature and include all varieties of those commodities. As a result, the requested commodities align with the commodities contained in the new subgroup 24B.

In the Federal Register of May 3, 2016 (81 FR 26471) (FRL-9944-87) establishing that crop group, EPA indicated that, for existing petitions for which a Notice of Filing had been published, the Agency would attempt to conform these petitions to the rule. Therefore, consistent with this rule, EPA is establishing tolerances on crop subgroup 24B, the tropical and subtropical, medium to large fruit, smooth, inedible peel subgroup, rather than all the commodities individually. EPA's dietary and aggregate risk assessments are based on data from the required representative commodities and account for flupyradifurone exposure from all of the subgroup 24B commodities.

Therefore, tolerances are established for residues of flupyradifurone, including its metabolites and degradates, in or on caneberry subgroup 13-07A at 5.0 ppm; cilantro, fresh leaves at 30 ppm; fruit, stone, group 12-12 at 1.5 ppm; kava, fresh leaves at 40 ppm; kava, roots at 0.90 ppm; quinoa, grain at 3.0 ppm; and the tropical and subtropical, medium to large fruit, smooth, inedible peel subgroup 24B at 0.60 ppm.

This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

I. Background

The BLM has specific authority to charge fees for processing applications and other documents relating to public lands under section 304 of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1734. In 2005, the BLM's minerals program published a final cost recovery rule (70 FR 58854) establishing or revising fees and service charges imposed in connection with the processing of certain minerals program-related actions (2005 Cost Recovery Rule). In addition to establishing the fees and charges, the 2005 Cost Recovery Rule also established the method the BLM would use to adjust those fees and service charges on an annual basis.

At 43 CFR 3000.12(a), the regulations provide that the BLM will annually adjust fees established in Subchapter C (43 CFR parts 3000-3900) according to changes in the Implicit Price Deflator for Gross Domestic Product (IPD-GDP), which is published quarterly by the U.S. Department of Commerce. See also 43 CFR 3000.10. This final rule updates those fees and service charges consistent with that direction. The fee adjustments in this rule are based on the mathematical formula set forth in the 2005 Cost Recovery Rule. The public had an opportunity to comment on that adjustment procedure as part of the 2005 rulemaking. Accordingly, the Department of the Interior for good cause finds under 5 U.S.C. 553(b)(B) and (d)(3) that notice and public comment procedures are unnecessary and that the fee adjustments in this rule may be effective less than 30 days after publication. See 43 CFR 3000.10(c).

The BLM's minerals program publishes a fee update rule each year, which becomes effective on October 1. As set forth in the 2005 Cost Recovery Rule, the fee updates are based on the change in the IPD-GDP from the 4th Quarter of one calendar year to the 4th Quarter of the following calendar year. In this case, the fee update rule is based on the change in the IPD-GDP from the 4th Quarter of 2014 to the 4th Quarter of 2015 and reflects the rate of inflation over four calendar quarters.

The fee is calculated by applying the IPD-GDP to the base value from the previous year's rule, also known as the “existing value.” This calculation results in an updated base value. The updated base value is then rounded to the closest multiple of $5 for fees equal to or greater than $1, or to the nearest cent for fees under $1, to establish the new fee.

Under this rule, 30 fees will remain the same and 18 fees will increase. Of the 18 fees that are being increased by this rule, 15 of the increases are equal to $5 each. The largest increase, $35, will be applied to the fee for adjudicating a mineral patent application containing more than 10 claims, which will increase from $3,075 to $3,110. The fee for adjudicating a patent application containing 10 or fewer claims will increase by $20, from $1,535 to $1,555. The “plus per acre nomination fee” for geothermal development will increase from $0.11 to $0.12.

The calculations that resulted in the new fees are included in the table below:

The figures in the Existing Fee column in the table above represent the base value of the existing fee (shown in the Existing Value column) rounded to the closest multiple of $5 for fees equal to or greater than $1, or to the nearest cent for fees under $1. In calculating the annual adjustment to the fee, however, the BLM begins with the unrounded base fee, represented in the Existing Value column. The Existing Value is the figure from the New Value column in the previous year's rule. In the case of fees that were not in the table the previous year, or that had no figure in the New Value column the previous year, the Existing Value is the same as the Existing Fee. Because the new fees are derived from rounding the new values to the closest multiple of $5 for fees equal to or greater than $1, or to the nearest cent for fees under $1, adjustments based on the figures in the Existing Fee column would lead to significantly over- or under-valued fees over time. Accordingly, fee adjustments are made by multiplying the annual change in the IPD-GDP by the figure in the Existing Value column. This calculation defines the New Value for this year, which is then rounded to the nearest $5 for fees equal to or greater than $1, or the nearest penny for fees under $1, to establish the New Fee.

This document is not a significant rule, and the Office of Management and Budget has not reviewed this rule under Executive Order 12866.

The BLM has determined that the rule will not have an annual effect on the economy of $100 million or more. It will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The changes in today's rule are much smaller than those in the 2005 final rule, which did not approach the threshold in Executive Order 12866. For instructions on how to view a copy of the analysis prepared in conjunction with the 2005 final rule, please contact one of the persons listed in the FOR FURTHER INFORMATION CONTACT section above.

This rule will not create inconsistencies or otherwise interfere with an action taken or planned by another agency. This rule does not change the relationships of the onshore minerals programs with other agencies' actions. These relationships are included in agreements and memoranda of understanding that will not change with this rule.

In addition, this final rule does not materially affect the budgetary impact of entitlements, grants, or loan programs, or the rights and obligations of their recipients. This rule applies an inflationary adjustment factor to existing user fees for processing certain actions associated with the onshore minerals programs. However, most of these fee increases are less than 2 percent, and none of the increases materially affects the budgetary impact of any of the affected fees or charges.

Finally, this rule will not raise novel legal or policy issues. As explained above, this rule simply implements an annual process to account for inflation that was adopted by and explained in the 2005 Cost Recovery Rule.

This final rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). As a result a Regulatory Flexibility Analysis is not required. The Small Business Administration defines small entities as individual, limited partnerships, or small companies considered to be at arm's length from the control of any parent companies if they meet the following size requirements as established for each North American Industry Classification System (NAICS) code:

The SBA standards were adjusted as of February 26, 2016, per 13 CFR 121.104. The SBA would consider many, if not most, of the operators with whom the BLM works in the onshore minerals programs to be small entities. The BLM notes that this final rule does not affect service industries, for which the SBA has a different definition of “small entity.”

The final rule may affect a large number of small entities because 18 fees for activities on public lands will be increased. However, most of the fee increases will be less than 2 percent. The adjustments result in no increase in the fees for processing 30 actions relating to the BLM's minerals programs. The highest adjustment, in dollar terms, is for adjudications of mineral patent applications involving more than 10 mining claims; that fee will increase by $35. Accordingly, the BLM has concluded that the economic effect of the rule's changes will not be significant, even for small entities. For the 2005 Cost Recovery Rule, the BLM completed a Regulatory Flexibility Act threshold analysis, which is available for public review in the administrative record for that rule. For instructions on how to view a copy of that analysis, please contact one of the persons listed in the FOR FURTHER INFORMATION CONTACT section above. The analysis for the 2005 rule concluded that the fees would not have a significant economic effect on a substantial number of small entities. The fee increases implemented in today's rule are substantially smaller than those provided for in the 2005 rule.

This final rule is not a “major rule” as defined at 5 U.S.C. 804(2). The final rule will not have an annual effect on the economy greater than $100 million; it will not result in major cost or price increases for consumers, industries, government agencies, or regions; and it will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Accordingly, a Small Entity Compliance Guide is not required.

This final rule 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. In accordance with Executive Order 13132, the BLM therefore finds that the final rule does not have federalism implications, and a federalism assessment is not required.

This rule does not contain information collection requirements that require a control number from the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). After the effective date of this rule, the new fees may affect the non-hour burdens associated with the following control numbers:

As required by Executive Order 12630, the BLM has determined that this rule will not cause a taking of private property. No private property rights will be affected by a rule that merely updates fees. The BLM therefore certifies that this final rule does not represent a governmental action capable of interference with constitutionally protected property rights.

In accordance with Executive Order 12988, the BLM finds that this final rule will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order.

The BLM has determined that this final rule qualifies as a routine financial transaction and a regulation of an administrative, financial, legal, or procedural nature that is categorically excluded from environmental review under NEPA pursuant to 43 CFR 46.205 and 46.210(c) and (i). The final rule does not meet any of the 12 criteria for exceptions to categorical exclusions listed at 43 CFR 46.215. Therefore, neither an environmental assessment nor an environmental impact statement is required in connection with the rule (40 CFR 1508.4).

The BLM has determined that this final rule is not significant under the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq., because it will not result in State, local, private sector, or tribal government expenditures of $100 million or more in any one year, 2 U.S.C. 1532. This rule will not significantly or uniquely affect small governments. Therefore, the BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act.

In accordance with Executive Order 13175, the BLM has determined that this final rule does not include policies that have tribal implications. Specifically, the rule would not have substantial direct effects on one or more Indian tribes. Consequently, the BLM did not utilize the consultation process set forth in Section 5 of the Executive Order.

In developing this rule, the BLM did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554).

In accordance with Executive Order 13211, the BLM has determined that this final rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It merely adjusts certain administrative cost recovery fees to account for inflation.

The principal author of this rule is Mark Purdy of the Division of Regulatory Affairs, Bureau of Land Management.

For reasons stated in the preamble, the Bureau of Land Management amends 43 CFR part 3000 as follows:

This final rule amends the DFARS as follows—

1. Provides direction to contracting officers at DFARS 210.002 to follow the procedures at DFARS Procedures, Guidance, and Information (PGI) 210.002(e)(iii) regarding market research file documentation;

2. Add DFARS 212.102(a)(ii) to reflect that contracting officers should follow the procedures and guidance at PGI 212.102(a) regarding file documentation;

3. Revises DFARS 213.7001 to update cross references to DFARS PGI;

4. Provides an updated internet link at DFARS 252.219-7000 to the Procurement Technical Assistance Center locations; and

5. Provides an updated internet link at DFARS 252.245-7004(b) to the Plant Clearance Automated Reutilization Screening System.

Therefore, 48 CFR parts 210, 212, 213, and 252 are amended as follows:

I. Background

DoD published a proposed rule in the Federal Register at 81 FR 17050 on March 25, 2016. This final rule implements section 2801 of the National Defense Authorization Act for Fiscal Year 2012 (Pub. L. 112-81). Section 2801 amends 10 U.S.C. 2306 by prohibiting any form of cost-plus contracting for military construction projects or military family housing projects. Three respondents submitted public comments in response to the proposed rule.

DoD reviewed the public comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments is provided, as follows:

There are minor changes to the DFARS text from the proposed rule based on the public comments. A list of the specific cost-reimbursement contract types prohibited has been included at DFARS 216.301-3, Limitations. At DFARS 236.215 the terminology was expanded to state “contracts in connection with a military construction project or military family housing project” in lieu of “contracts for construction.” Additionally, at DFARS 236.271, the reference to 236.271 to the prohibition on use of “cost-plus” contracts was revised to refer to “cost-reimbursement” contracts.

Comment: One respondent expressed support for the proposed rule, indicating that a blanket prohibition on cost-plus contracting in military construction and family housing projects is in the best interest of all parties, including small businesses and taxpayers.

Response: Noted.

Comment: One respondent opposed a blanket prohibition of cost-plus contracts stating that the rule excludes advances and innovations in the marketplace by prohibiting the selection of this form of contracting for construction projects.

Response: DoD does not have discretion in this rule as the prohibition is statutory and required by 10 U.S.C. 2306(c).

Comment: One respondent expressed concern that the term “cost-plus contract,” as used in the proposed rule is nonstandard within title 48 of the Code of Federal Regulation, and as such should be further defined.

Response: In the context of the proposed DFARS revisions, “cost-plus” was interpreted as meaning those “cost-reimbursement” contract types defined in Federal Acquisition Regulation 16.304, 16.305, and 16.306. Further delineation, however, is added to DFARS 216.301-3 to list the specific contract types prohibited: Cost-plus-fixed-fee, cost-plus-award-fee, and cost-plus-incentive-fee. Additionally, the reference in DFARS 236.271 to use of any cost-plus contract is revised to refer to the list of cost-reimbursement contracts at DFARS 216.301-3.

Comment: One respondent proposed that DoD remove the cross reference to 10 U.S.C. 2306(c) as the prohibition should remain notwithstanding any future changes that might be made to 10 U.S.C. 2306(c).

Response: It is a DFARS drafting convention to indicate in the regulations if they are based on a statute. This is helpful when considering future amendments to, or deviations from, the regulations. If the statute changes, appropriate changes to the regulations may be required.

Executive Orders (E.O.s) 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, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

A final regulatory flexibility analysis (FRFA) has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows:

The purpose of this rule is to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement section 2801 of the National Defense Authorization Act for Fiscal Year 2012, which amends 10 U.S.C. 2306, to prohibit any form of cost-plus contracting for military construction projects or military family housing projects.

No comments were received from the public regarding the initial regulatory flexibility analysis.

There is minimal impact anticipated on small entities as a result of the proposed rule. Based on data available in the Federal Procurement Data System, there were only 19 cost-reimbursement type construction contracts awarded in fiscal year 2015, two of which were awarded to small businesses. There is already a general prohibition at DFARS 216.306 on certain cost-plus-fixed-fee contracts funded by a military construction appropriations act. The proposed rule expands this prohibition to all cost-plus contract types in connection with a military construction project or a military family housing project.

There are no new projected reporting, recordkeeping, and other compliance requirements of the rule.

There are no known significant alternatives to the rule that would meet the requirements of the statute.

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Therefore, 48 CFR parts 216 and 236 are amended as follows:

I. Background

DoD published a proposed rule in the Federal Register at 81 FR 28812 on May 10, 2016, to implement section 813(a) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016 (Pub. L. 114-92). Section 813(a) modifies 10 U.S.C. 2321(f) to address rights in technical data relating to major weapon systems.

Until now, except for commercially available off-the-shelf (COTS) items, a contracting officer's challenge to asserted restrictions on technical data relating to a major system was sustained unless the contractor or subcontractor submitted information demonstrating that the item was developed exclusively at private expense.

Section 813(a) revised 10 U.S.C. 2321(f) in two primary ways: (1) The major systems rule was narrowed to apply only to major weapon systems; and (2) the exception to the major systems rule for commercially available off-the-shelf (COTS) items was expanded to include three additional exceptions. More specifically, the formerly COTS-only exception was expanded to include (i) COTS items with modifications of a type customarily available in the commercial marketplace or minor modifications made to meet Federal Government requirements; (ii) commercial subsystems or components of a major weapon system, if the major weapon system was acquired as a commercial item in accordance with 10 U.S.C. 2379(a); and (iii) components of a subsystem, if the subsystem was acquired as a commercial item in accordance with 10 U.S.C. 2379(b).

There were no public comments submitted in response to the proposed rule. There are no significant changes from the proposed rule made in the final rule.

Although there were no comments received on the substance of the proposed rule, DoD did receive a request to suspend the rulemaking process on any case (including this case) relating to rights in technical data until such time as the final report of the Government-Industry Advisory Panel (the Panel), established in accordance with section 813(b) of the NDAA for FY 2016, has been submitted to Congress. After consultation with the Chair of the Panel, DoD determined to proceed with publication of the final rule on this case. This case implements section 813(a) of the NDAA for FY 2016, the same section that set up the Panel, with no indication that DoD should delay implementation. Furthermore, the law is very prescriptive and the proposed rule is a nearly verbatim implementation of the statutory language, so there could be no substantive change to this rule without a corresponding statutory change to 10 U.S.C. 2321. The statute was effective upon implementation, and is expected to be beneficial to industry, including small businesses.

In order to implement the statutory changes for validation of asserted restrictions on technical data, and apply the revised requirements and procedures to validation of asserted restrictions on computer software, this final rule amends—

• DFARS 227.7103-13, Government right to review, verify, challenge, and validate asserted restrictions;

• DFARS 227.7203-13, Government right to review, verify, challenge, and validate asserted restrictions;

• DFARS 252.227-7019, Validation of Asserted Restrictions—Computer Software; and

• DFARS 252.227-7037, Validation of Restrictive Markings on Technical Data.

This final rule does not add any new provisions or clauses or add new requirements to existing provision or clauses. Rather, when acquiring major weapon systems, it expands the circumstances relating to commerciality in which the contracting officer shall presume that development was exclusively at private expense.

Executive Orders (E.O.s) 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, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

A final regulatory flexibility analysis (FRFA) has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows:

This rule was initiated to implement section 813(a) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016 (Pub. L. 114-92). The objective of this rule is to reduce the requirement to respond to Government challenges of restricted rights, by expanding the applicability of the presumption regarding development exclusively at private expense in accordance with section 813(a) of the NDAA for FY 2016.

There were no public comments in response to the initial regulatory flexibility analysis.

DoD cannot accurately determine the number of small entities that will be affected by this change in the regulations, because DoD does not have sufficient information about subcontract awards of subsystems and components of major weapon systems. However, DoD estimates an annual reduction of 50 prechallenge requests for information and 2 challenges of asserted technical data restrictions. DoD further estimates, based on data from the DoD FY 2014 Small Business Procurement Scorecard, that this reduction in challenges will affect about 17 small businesses (52 × 0.33).

The final rule reduces the requirement to respond to Government challenge of restricted rights. Under current regulations, the presumption regarding development exclusively at private expense does not apply to major systems or subsystems or components thereof, except for commercially available off-the-shelf items. This rule expands applicability of the presumption regarding development exclusively at private expense with regard to a major weapon system, or a subsystem or component thereof, to cover—

• A commercial subsystem or component of a major weapon system, if the major weapon system was acquired as a commercial item in accordance with DFARS subpart 234.70 (10 U.S.C. 2379(a));

• A component of a subsystem, if the subsystem was acquired as a commercial item in accordance with DFARS subpart 234.70 (10 U.S.C. 2379(b)); and

• Commercially available off-the-shelf items with modifications of a type customarily available in the commercial marketplace or minor modifications made to meet Federal Government requirements.

The classes of small entities that will be affected by this reduction are small businesses that provide any items in the above categories that are not challenged due to the new statute.

This rule reduces the burden on small entities to the maximum extent permitted by the statute.

This rule contains information collection requirements that have been approved by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). This information collection requirement has been assigned OMB Control Number 0704-0369, entitled “Defense Federal Acquisition Regulation Supplement (DFARS) Subpart 227.71, Rights in Technical Data, and Subpart 227.72, Rights in Computer Software and Computer Software Documentation, and related provisions and clauses.”

Therefore, 48 CFR parts 227 and 252 are amended as follows:

On June 29, 2016, the World Trade Organization (WTO) Committee on Government Procurement approved the accession of Moldova to the WTO Government Procurement Agreement (GPA). This rule adds Moldova to the list of WTO GPA countries wherever it appears in the DFARS, as part of the definition of “designated country”.

This rule only updates the list of designated countries in the DFARS by adding the newly designated country of Moldova. The definition of “designated country” is updated in each of the following clauses; however, this revision does not impact the clause prescriptions for use, or applicability at or below the simplified acquisition threshold, or applicability to commercial items. The clauses are: DFARS 252.225-7017, Photovoltaic Devices; DFARS 252.225-7021, Trade Agreements; and DFARS 252.225-7045, Balance of Payments Program—Construction Material Under Trade Agreements.

The statute that applies to the publication of the Federal Acquisition Regulation (FAR) is 41 U.S.C. 1707 entitled “Publication of Proposed Regulations.” Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure, or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure, or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because it is just updating the lists of designated countries in order to reflect that Moldova is now a member of the WTO GPA. These requirements affect only the internal operating procedures of the Government.

Executive Orders (E.O.s) 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, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require publication for public comment.

This rule affects the information collection requirements in the provisions at DFARS 252.225-7018, Photovoltaic Devices—Certificate, and 252.225-7020, Trade Agreements Certificate, currently approved under OMB Control Number 0704-0229, entitled “Defense Federal Acquisition Regulation Supplement Part 225, Foreign Acquisition, and related clauses,” in accordance with the Paperwork Reduction Act (44 U.S.C. chapter 35). The impact, however, is negligible, because the rule only affects the response of an offeror that is offering a product of Moldova in an acquisition that exceeds $191,000. In 252.225-7018, the offeror of a product from Moldova must now check a box at (d)(6)(i) of the provision. However, the offeror no longer needs to list a product from Moldova under “other end products” at 252.225-7020(c)(2), because Moldova is now a designated country.

Therefore, 48 CFR part 252 is amended as follows:

This Final Rule is organized as follows:

Section 5301 of the FAST Act, enacted on December 4, 2015, but made effective on October 1, 2015, pursuant to section 1003, directs the Secretary to revise 49 Code of Federal Regulations (CFR) 393.60(e) relating to the prohibition on obstructions to the driver's field of view, to provide an exception for the voluntary mounting on a windshield of “vehicle safety technology” likely to achieve a level of safety that is equivalent to or greater than the level of safety that would be achieved without the exception. Section 5301(c) provides that any windshield-mounted technology for which FMCSA had granted a limited exemption under 49 CFR part 381 that was in effect on the date of enactment of the FAST Act (October 1, 2015) shall be considered as meeting the equivalent-or-better level of safety. For this reason, FMCSA amends 49 CFR 393.60(e) to allow the use of all the devices for which limited exemptions had previously been granted, with restrictions on placement that are consistent with the restrictions that were included in the limited 2-year exemptions.

Specifically, the Agency replaces current § 393.60(e)(1) with (1) § 393.60(e)(1)(i), which requires antennas and similar devices to be mounted not more than 152 mm (6 inches) below the upper edge of the windshield, and outside the driver's sight lines to the road and highway signs and signals; and (2) § 393.60(e)(1)(ii), which provides an exception to paragraph (e)(1)(i) to allow devices that utilize certain vehicle safety technologies (including, but not limited to video event recorders, lane departure warning systems, collision mitigation or warning systems, transponders, and sensors that are part of a hands-free driver aid equipment package) to be mounted on the interior of the windshield and within the area swept by the windshield wipers. The Agency adds a definition of “vehicle safety technology” in § 393.5, specifically as it relates to § 393.60(e). The Agency believes the potential economic impact of these changes is negligible. The amendments do not impose new or more stringent requirements, but simply codify the temporary exemptions granted pursuant to 49 CFR part 381 that allow the use of the above-mentioned devices/technologies in locations that would have previously been a violation of § 393.60(e)(1). More importantly, the amendments do not mandate the use of any devices/technologies, but simply permit the voluntary use of the devices/technologies while mounted in a location that maximizes their effectiveness without impairing operational safety.

This rulemaking is based on the authority of the Motor Carrier Act, 1935 [1935 Act], the Motor Carrier Safety Act of 1984 [1984 Act], and the FAST Act of 2015.

The 1935 Act, as amended, provides that “[t]he Secretary of Transportation may prescribe requirements for—(1) qualifications and maximum hours of service of employees of, and safety of operation and equipment of, a motor carrier; and (2) qualifications and maximum hours-of-service of employees of, and standards of equipment of, a motor private carrier, when needed to promote safety of operation.” [49 U.S.C. 31502(b)].

The 1984 Act provides concurrent authority to regulate drivers, motor carriers, and vehicle equipment. It requires the Secretary to “prescribe regulations on commercial motor vehicle safety. The regulations shall prescribe minimum safety standards for commercial motor vehicles. At a minimum, the regulations shall ensure that—(1) commercial motor vehicles are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely; (3) the physical condition of operators of commercial motor vehicles is adequate to enable them to operate vehicles safely . . .; (4) the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators; and (5) an operator of a commercial motor vehicle is not coerced by a motor carrier, shipper, receiver, or transportation intermediary to operate a commercial motor vehicle in violation of a regulation promulgated under this section, or chapter 51 or chapter 313 of this title.” [49 U.S.C. 31136(a)].

Section 5301 of the FAST Act directs FMCSA to exempt voluntary mounting of a vehicle safety technology on a windshield if that technology is likely to achieve a level of safety that is equivalent to or greater than the level of safety that would be achieved without the exemption [Pub. L. 114-94, 129 Stat. 1312, 1543, Dec. 4, 2015]. Section 5301(c) also specifies that any regulatory exemption for windshield-mounted technologies in effect on the date of enactment of the FAST Act “shall be considered likely to achieve a level of safety that is equivalent to or greater than the level of safety that would be achieved absent an exemption . . .” It must be noted, however, that section 1003 of the FAST Act makes this provision effective on October 1, 2015, not on the date the act was signed.

The requirements of 49 U.S.C. 31136 (a)(1), (2) and (4) are applicable to this rulemaking action. The rulemaking amends 49 CFR part 393 to allow certain safety equipment to be mounted within the area of the windshield swept by the windshield wipers. The Agency has concluded that this modification will not impair operational safety. Because the amendments in this final rule are primarily technical changes that make permanent certain variances already allowed by regulatory exemptions, FMCSA believes that they will be welcomed by motor carriers and drivers alike and that coercion to violate these variances, which is prohibited by § 31136(a)(5), will not be an issue. FMCSA must consider the “costs and benefits” of any proposal before promulgating regulations [49 U.S.C. 31136(c)(2)(A), 31502(d)].

Adoption of this rule is a nondiscretionary ministerial action. Because prior notice and opportunity for comment could not affect the substance of this rule, FMCSA finds good cause under 49 U.S.C. 553(b) to make the rule immediately final. For the same reason, the Agency finds good cause to make the rule effective upon publication, as authorized by 49 U.S.C. 553(d).

The fundamental purpose of 49 CFR part 393, “Parts and Accessories Necessary for Safe Operation,” is to ensure that an employer does not operate a CMV or cause or permit it to be operated, unless it is equipped in accordance with the requirements and specifications of that part. However, nothing contained in part 393 should be construed to prohibit the use of additional equipment and accessories, as long as it is not inconsistent with or prohibited by the FMCSRs, provided that such equipment and accessories do not decrease the safety of operation of the CMV on which they are used (§ 393.3).

Prior to 1998, § 393.60(c) (“Use of vision-reducing matter”) prohibited the operation of any CMV “with any label, sticker, decalcomania, or other vision-reducing matter covering any portion of its windshield or windows at either side of the driver's compartment, except that stickers required by law may be affixed at the bottom of the windshield, provided that no portion of any label, sticker, decalcomania, or other vision-reducing matter may extend upward more than 4 1/2 inches from the bottom of such windshield.” On March 6, 1995, the Federal Highway Administration (FHWA) granted a petition from the Commonwealth of Kentucky and Heavy Vehicle Electronic License Plate, Inc. for a waiver of the requirements of § 393.60(c) to allow mounting of an automatic vehicle identification transponder at the upper border of the windshield of CMVs. After reviewing automotive engineering recommended practices, the Federal Motor Vehicle Safety Standards, research regarding driver's field of view, and CMV cab designs related to placement of interior mirrors and sun visors, FHWA concluded that mounting a transponder at the approximate center of the top of the windshield would be extremely unlikely to create a situation inconsistent with the safe operation of a CMV, and was unlikely to have any effect on a driver's ability to observe nearby objects, such as pedestrians.

On April 14, 1997, FHWA published a notice of proposed rulemaking (NPRM) in which the Agency proposed general amendments to part 393 of the FMCSRs, including numerous revisions to § 393.60 regarding glazing materials, windshields and windows (62 FR 18170). Among other things, FHWA proposed revising § 393.60(c) concerning the restrictions on the use of vision-reducing matter on windshields to allow the installation of antennas, transponders, and similar devices in the upper margin of windshields. Specifically, the NPRM proposed to replace § 393.60(c) with a new § 393.60(e), “Prohibition on obstructions to the driver's field of view,” that would (1) require antennas, transponders, and similar devices to be located not more than 6 inches below the upper edge of the windshield, outside the area swept by the windshield wipers, and outside the driver's sight lines to the road and highway signs or signals, and (2) retain the general requirement that inspection decals and stickers required under Federal or State laws must be mounted not more than 41/2 inches from the bottom of the windshield, outside the area swept by the windshield wipers, and outside the driver's sight lines to the road and highway signs or signals. The proposed revisions were intended to eliminate the need for motor carriers to petition FHWA for waivers to allow the use of windshield-mounted transponders and similar devices, such as the March 1995 waiver. The NPRM stated that “The proposed amendment would codify the March 6, 1995, waiver and help to promote the use of advanced technologies to improve the efficiency and safety of operation of commercial motor vehicles.”

On January 9, 1998, FHWA published a final rule adopting the amendments as proposed in the April 1997 NPRM (63 FR 1383). In adopting the amendments, FHWA stated that “revising § 393.60 to allow the use of windshield-mounted transponders and similar devices will help to promote increased efficiency and safety of motor carrier operations.” FHWA reviewed accident reports concerning the transponder-equipped CMVs operating under the terms of the 1995 waiver, and determined that there had been no crashes that could be attributed to the mounting of such devices in the uppermost area of the center of the windshields of the CMVs. Based on this, FHWA concluded that “the real-world experience of the motor carriers operating approximately 10,000 transponder-equipped CMVs indicates that allowing other CMVs to be similarly equipped is consistent with the public interest and the safe operation of CMVs.” The amendments adopted in the January 1998 final rule, establishing § 393.60(e), have remained unchanged over the past 18 years.

In the past several years, FMCSA has granted numerous temporary exemptions from 49 CFR 393.60(e)(1) for a variety of devices and safety technologies that require a clear forward-facing visual field to function most effectively. In conditions of rain or other inclement weather, these devices must be located partially or entirely in the area of the windshield swept by wipers. Many of these devices/safety technologies, such as video event recorders, lane departure warning system sensors, and forward collision warning and mitigation systems, did not exist when the requirements of § 393.60(e) were first established in 1998.

Section 5301(a) of the FAST Act directs FMCSA to amend § 393.60(e) of the FMCSRs to “exempt from that section the voluntary mounting on a windshield of vehicle safety technology likely to achieve a level of safety that is equivalent to or greater than the level of safety that would be achieved absent the exemption.” “Vehicle safety technology” is defined in Section 5301(b) to include (1) a fleet-related incident management system, (2) performance or behavior management system, (3) speed management system, (4) lane departure warning system, (5) forward collision warning or mitigation system, (6) active cruise control system, and (7) any other technology that the Secretary considers applicable.

Section 5301(c) also states that “any windshield mounted technology with a short term exemption under part 381 of title 49, Code of Federal Regulations, on the date of enactment of this Act, shall be considered likely to achieve a level of safety that is equivalent to or greater than the level of safety that would be achieved absent an exemption.” The following is a list of temporary exemptions from § 393.60(e) that were in effect on October 1, 2015, the effective date of the FAST Act pursuant to section 1003:

• On March 13, 2015 (80 FR 13460), FMCSA granted a 2-year exemption from § 393.60(e)(1) to Volvo/Prevost, LLC motorcoaches for a lane departure system mounted not more than 7 inches above the lower edge of the area swept by the windshield wipers, and outside the driver's sight lines to the road and highway signs and signals. The lane departure warning system alerts drivers who unintentionally drift out of their lane of travel, thus promoting improved safety performance.

• On March 18, 2015 (80 FR 14222), FMCSA granted Mobileye, Inc., a 2-year exemption from § 393.60(e)(1) for CMVs utilizing a camera-based collision avoidance system mounted not more than 4 inches below the upper edge, or above the lower edge, of the area swept by the windshield wipers, and outside the driver's sight lines to the road and highway signs and signals. The collision avoidance system warns drivers of potential hazards by detecting other vehicles, pedestrians and cyclists on the road, and lane markings and traffic signs.

• On March 18, 2015 (80 FR 14231), FMCSA granted Lytx Inc. (formerly DriveCam, Inc.), a renewal of a 2-year exemption from § 393.60(e)(1) for CMV utilizing video event recorders mounted not more than 50 mm (2 inches) below the upper edge of the area swept by the windshield wipers, and located outside the driver's sight lines to the road and highway signs and signals. Use of the video event recorders increases safety through (1) identification and remediation of risky driving behaviors such as distracted driving and drowsiness, (2) enhanced monitoring of passenger behavior for CMVs in passenger service, and (3) enhanced collision review and analysis. This exemption was initially granted on April 15, 2009, and was renewed for successive 2-year periods in 2011, 2013, and 2015.

• On April 2, 2015 (80 FR 17818), FMCSA granted Greyhound Lines, Inc. a renewal of a 2-year exemption from § 393.60(e)(1) for its buses utilizing video event recorders mounted not more than 50 mm (2 inches) below the upper edge of the area swept by the windshield wipers, and located outside the driver's sight lines to the road and highway signs and signals. Use of the video event recorders increases safety through (1) identification and remediation of risky driving behaviors such as distracted driving and drowsiness, (2) enhanced monitoring of passenger behavior for CMVs in passenger service, and (3) enhanced collision review and analysis. This exemption was initially granted on March 19, 2009, and was renewed for successive 2-year periods in 2011, 2013, and 2015.

• On May 20, 2015 (80 FR 29151), FMCSA granted the Virginia Tech Transportation Institute a 2-year exemption from § 393.60(e) to allow certain motor carriers operating up to 150 CMVs that are part of a National Highway Traffic Safety Administration (NHTSA) research program on the reliability of collision avoidance systems to mount camera-based data acquisition systems within and/or below 3 inches of the bottom of the driver side windshield wiper sweep, and out of the driver's sight lines to the road and highway signs and signals. The data acquisition system provides an external view of the road and an internal view of the driver, scanning the facial features of the driver for detection of impaired driving.

• On June 22, 2015 (80 FR 35697), FMCSA granted Help, Inc. a 2-year exemption from § 393.60(e)(1) for motor carriers using Help, Inc. transponders mounted 2 inches right of the center of the windshield, and 2-3 inches above the dashboard. If however, because of the design and mounting of the windshield wipers on a particular CMV, use of the mounting location identified above did not result in the transponder being located within the swept area of the wipers, where it could function optimally, the transponder could be positioned: (1) To the right of the center of the windshield; and (2) as low as possible in the swept area of the wipers. The transponders transmit and receive data that is used to help determine a vehicle's compliance with safety, weight, and credential requirements while traveling at highway speeds, saving motor carriers time, fuel, and money, reducing congestion around inspection facilities, and improving inspection efficiency and effectiveness by enabling officials to focus their resources on vehicles with safety and size and weight infractions.

• On November 18, 2013, FMCSA renewed (and published on November 25, 2013, 78 FR 70396) for 2 years an exemption from § 393.60(e)(1) for motor carriers using lane departure warning systems and collision mitigation systems mounted not more than 50 mm (2 inches) below the upper edge of the area swept by the windshield wipers, and outside the driver's sight lines to the road and highway signs and signals. The lane departure warning system alerts drivers who unintentionally drift out of their lane of travel, thus promoting improved safety performance. This exemption was initially granted in 2011, renewed (through November 25, 2015) in 2013, and again (through November 17, 2017) on December 7, 2015 (80 FR 76061). The 2011 exemption was in effect on the date of enactment of the FAST Act.

Less than one month after enactment of the FAST Act, FMCSA granted one additional temporary exemption from § 393.60(e) that is currently in effect:

• On December 21, 2015 (80 FR 794112), FMCSA granted Volvo Trucks of North America a 2-year exemption from § 393.60(e)(1) for motor carriers operating Volvo CMVs to use a rain and ambient light detection sensor mounted in the lower part of the passenger side of the windshield within the bottom 7 inches of the area swept by the windshield wipers, outside the driver's sight lines to all mirrors, highway signs, signals, and view of the road ahead. The sensors are part of a hands-free driver aid equipment package intended to improve driver safety.

Video event recorders (Lytx, Greyhound), lane departure warning systems (Bendix, Volvo/Prevost), and collision avoidance systems (Mobileye) were specifically identified in the definition of “vehicle safety technology” in section 5301(b) of the FAST Act. FMCSA considers both the VTTI data acquisition system, which scans a driver's facial features for the detection of impaired driving, and the Volvo rain and ambient light sensor, which is part of a hands-free driver aid equipment package, to be “performance or behavior management systems” under the definition in the Act. While transponders do not fall into any of the specific categories included in the definition of “vehicle safety technology” in the Act, these devices have been permitted to be mounted in the windshield of CMVs since the granting of the 1995 waiver, and will be included in the amendments made via this rule as the HELP, Inc., temporary exemption was in effect at the time the Act was published.

As directed by the Act, this final rule amends § 393.60(e) to allow certain vehicle safety technologies to be mounted on the interior of the windshield of a CMV, within a defined portion of the swept area of the windshield. FMCSA adds a definition of “vehicle safety technology” in § 393.5 of the FMCSRs, to include all of the technologies that had been granted temporary exemptions from § 393.60(e) that were in effect at the time the FAST Act was enacted. Consistent with the terms and conditions outlined in the various temporary exemptions currently in effect, the amended rules require devices that must be mounted within the area swept by the windshield wipers to be located (1) not more than 100 mm (4 inches) below the upper edge, and (2) not more than 175 mm (7 inches) above the lower edge of the area swept. Additionally, and consistent with the existing regulation and the terms and conditions of the temporary exemptions, the devices must be located outside the driver's sight lines to the road and highway signs and signals.

Similar to the 1995 waiver and the 1998 amendments to § 393.60, this rule updates the FMCSRs in response to the development and proliferation of devices that utilize new and innovative vehicle safety technologies that did not exist at the time the previous requirements were adopted. These devices/technologies have been proven to improve safety and vehicle operations. As the first temporary exemption from 393.60(e)(1) was granted in March 2009, FMCSA has over 7 years of real-world experience of motor carriers operating CMVs using devices mounted on the interior of the windshield and marginally within the area swept by the windshield wipers. During that time, FMCSA is unaware of any crashes that have been attributed to the location of such devices.

Section 5301(b) of the Act directs the Agency to permit specific vehicle safety technologies (i.e., fleet-related incident management system, performance or behavior management system, speed management system, lane departure warning system, forward collision warning or mitigation system, and active cruise control system) to be mounted lower in the windshield than currently allowed, and “any other technology that the Secretary considers applicable.” At this time, the Agency is unaware of any other existing technologies that should be included in the amendments made via this rule.

The FMCSRs, and any exceptions to the FMCSRs, apply only within the United States (and, in some cases, United States territories). Motor carriers and drivers are subject to the laws and regulations of the countries that they operate in, unless an international agreement states otherwise. Drivers and carriers should be aware of the regulatory differences amongst nations.

Under this final rule, the requirements of 49 CFR 393.60 are revised to allow for the utilization of specific vehicle safety technologies that would be mounted on the interior of the windshield of a CMV, and within the area swept by the windshield wipers. FMCSA also adds a definition for “vehicle safety technology” in 49 CFR 393.5

This final rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011); is not significant within the meaning of DOT regulatory policies and procedures (DOT Order 2100.5 dated May 22, 1980, 44 FR 11034, February 26, 1979); and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. Therefore, the Office of Management and Budget has not reviewed it under that Order. The Agency estimates that the economic benefits and costs of the voluntary use of vehicle safety technologies will be less than $100 million. Carriers will not incur costs associated with adopting any technologies identified in this final rule because all such technologies are purely optional. Manufacturers of technologies currently exempted will experience a minor cost savings through the elimination of the biennial burden to renew existing exemptions. Manufacturers not currently named in exemptions that wish to develop and market such technologies will have new business opportunities. Carriers that choose to purchase and install currently exempt technologies may be more confident in doing so since there will be no question as to whether an expiring exemption will be renewed.

Furthermore, the net impact of this rule, although small, should be beneficial to the motoring public. When FMCSA previously granted each exemption involved here, it found that doing so would likely achieve a level of safety equivalent to, or greater than, the level of safety achieved without the exemption. Based on the technical information available, there is no indication that the rain and ambient light detection sensors, lane departure warning system sensors, collision mitigation or avoidance system sensors, video event recorders or transponders would obstruct drivers' views of the roadway, highway signs and surrounding traffic. Generally, trucks and buses have an elevated seating position that greatly improves the forward visual field of the driver; and the location within the top four inches of the area swept by the windshield wipers and out of the driver's sightline or within the bottom 7 inches of the area swept by the windshield wipers and out of the driver's sightline will be reasonable and enforceable at roadside. Moreover, no exemption has been rescinded due to: (1) Motor carriers and/or commercial motor vehicles failing to comply with the terms and conditions of an exemption; (2) A lower level of safety than that prior to the granting of an exemption; or (3) Inconsistency between continuation of an exemption with the goals and objectives of 49 U.S.C. 31136(e) and 31315(b). For the reasons stated above, the Agency estimates that the net impact of this rule will be positive.

The economic impact of this final rule is expected to be small because it merely makes permanent certain temporary exemptions to the windshield-obstruction rule, and none of its provisions involve new or more stringent requirements than those already allowed by current exemptions. This final rule does not approach the $100 million annual threshold of economic significance with respect to costs; in fact, it adds no new costs. With respect to benefits, this final rule will marginally increase the usage of vehicle safety technologies as defined in Section 5301(b) of the FAST Act, thereby producing safety benefits that the Agency lacks data to quantify. However, as the vehicle safety technologies permanently exempted in this rule are already commercially available and used by many carriers, the Agency expects their usage to increase only slightly faster than without this rule. The Agency therefore expects the benefits of this final rule will not rise to the $100 million annual threshold for economic significance. Moreover, the Agency does not expect the rule to generate substantial congressional or public interest.

The FMCSA has determined that it has good cause under 5 U.S.C. 553(b) to adopt this final rule without prior notice and opportunity for comment. The Agency finds that notice and comment are “unnecessary” because section 5301(a) of the FAST Act required FMCSA to revise § 393.60(e) within 180 days of the date of enactment, essentially to codify as permanent regulations those exemptions to the windshield-obstruction rule that have been issued in recent years. Section 5301(c) specified that any exemption from § 393.60(e) in effect on the date of enactment of the FAST Act must be considered to meet the statutory test for an exemption in 49 U.S.C. 31315(b)(1), i.e., “likely [to] achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.” Because section 5301 gives FMCSA no discretion in amending the regulations to allow vehicle safety technology, the Agency has determined that notice and comment are unnecessary.

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Title II, Pub. L. 104-121, 110 Stat. 857, March 29, 1996), requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields and governmental jurisdictions with populations of less than 50,000. Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities and mandates that agencies strive to lessen any adverse effects on these businesses.

Pursuant to the Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), FMCSA is not required to prepare a final regulatory flexibility analysis under 5 U.S.C. 604(a) for this final rule because the Agency has not issued a notice of proposed rulemaking prior to this action. FMCSA determined that it has good cause to adopt the rule without notice and comment.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, FMCSA wants to assist small entities in understanding this final rule so that they can better evaluate its effects on them and participate in the rulemaking initiative. If the final rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the FMCSA personnel listed in the FOR FURTHER INFORMATION CONTACT section of the final rule.

Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business Administration's Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-734-3247). DOT has a policy ensuring the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.

This final rule will not impose an unfunded Federal mandate, as defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532 et seq.), that results in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $155 million (which is the value of $100 million in 2014 after adjusting for inflation) or more in any 1 year.

This final rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). FMCSA has determined that no new information collection requirements are associated with this rule under OMB control number 2126-0003, “Inspection, Repair, and Maintenance.”

A rule has Federalism implications if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on the States. FMCSA has analyzed this final rule under Executive Order 13132 and determined that it does not have Federalism implications.

The final rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

FMCSA analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The Agency determined that this final rule will not create an environmental risk to health or safety that may disproportionately affect children.

FMCSA reviewed this final rule in accordance with Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it will not effect a taking of private property or otherwise have taking implications.

Section 522 of title I of division H of the Consolidated Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to conduct a privacy impact assessment of a regulation that will affect the privacy of individuals. This final rule does not require the collection of any personally identifiable information.

The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies and any non-Federal agency that receives records contained in a system of records from a Federal agency for use in a matching program. FMCSA has determined this final rule will not result in a new or revised Privacy Act System of Records for FMCSA.

The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

FMCSA analyzed this final rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency has determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, it does not require a Statement of Energy Effects under E.O. 13211.

This final rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The National Technology Transfer and Advancement Act (15 U.S.C. 272 note) requires Federal agencies proposing to adopt technical standards to consider whether voluntary consensus standards are available. If the Agency chooses to adopt its own standards in place of existing voluntary consensus standards, it must explain its decision in a separate statement to OMB. Because FMCSA does not intend to adopt its own technical standards, there is no need to submit a separate statement to OMB on this matter.

FMCSA analyzed this final rule in accordance with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and determined under our environmental procedures Order 5610.1 (69 FR 9680, March 1, 2004) that this action does not have any effect on the quality of the environment. Therefore, this final rule is categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement under FMCSA Order 5610.1, Appendix 2, paragraph 6.bb. The Categorical Exclusion (CE) in paragraph 6.bb. addresses regulations concerning vehicle operation safety standards (e.g., regulations requiring: Certain motor carriers to use approved equipment which is required to be installed such as an ignition cut-off switch, or carried on board, such as a fire extinguisher, and/or stricter blood alcohol concentration (BAC) standards for drivers, etc.), equipment approval, and/or equipment carriage requirements (e.g. fire extinguishers and flares). A Categorical Exclusion Determination is available for inspection or copying in the Regulations.gov.

FMCSA also analyzed this final rule under the Clean Air Act, as amended (CAA), section 176(c) (42 U.S.C. 7401 et seq.), and implementing regulations promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA's general conformity requirement since it does not affect direct or indirect emissions of criteria pollutants.

Under E.O. 12898, each Federal agency must identify and address, as appropriate, “disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations” in the United States, its possessions, and territories. FMCSA evaluated the environmental justice effects of this final rule in accordance with the Executive Order, and has determined that it has none, nor is there any collective environmental impact that would result from its promulgation.

For the reasons stated above, FMCSA amends 49 CFR chapter III, subchapter B, as follows:

I. Public Participation Viewing Comments and Documents

To view comments, as well as documents mentioned in this preamble as being available in the docket, go to www.regulations.gov and insert the docket number, “FMCSA-2016-0050” in the “Keyword” box and click “Search.” Next, click “Open Docket Folder” button and choose the document listed to review. If you do not have access to the Internet, you may view the docket online by visiting the Docket Management Facility in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays.

FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain parts of the Federal Motor Carrier Safety Regulations. FMCSA must publish a notice of each exemption request in the Federal Register (49 CFR 381.315(a)). The Agency must provide the public an opportunity to inspect the information relevant to the application, including any safety analyses that have been conducted. The Agency must also provide an opportunity for public comment on the request.

The Agency reviews safety analyses and public comments submitted, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the Federal Register (49 CFR 381.315(b)) with the reasons for denying or granting the application and, if granted, the name of the person or class of persons receiving the exemption, and the regulatory provision from which the exemption is granted. The notice must also specify the effective period of the exemption (up to 5 years), and explain its terms and conditions. The exemption may be renewed (49 CFR 381.300(b)).

Section 5206(a)(3) of the “Fixing America's Surface Transportation Act,” (FAST Act) [Pub. L. 114-94, 129 Stat. 1312, 1537, Dec. 4, 2015], amended 49 U.S.C. 31315(b) by adding a new paragraph (2) which permits exemptions for no longer than 5 years from their dates of inception, instead of the previous 2 years. This statutory provision was codified in 49 CFR 381.300, effective July 22, 2016 (81 FR 47714).

ArcelorMittal (USDOT 1098829) operates a steel plant in East Chicago, Indiana, its principal place of business. Several public roadways run through the plant area. Steel coils produced in one portion of the plant must be transported over two short segments of public highway to another section of the plant for further processing or shipment to customers. Both points where the vehicles cross are controlled intersections, having either traffic lights or a combination of traffic lights and signs. The first public road the CMVs cross is Riley Road. The crossing is controlled by a 4-way traffic signal. The distance traveled is 80 feet. The average number of crossings at this intersection is 24 per day. The second crossing is at Dickey Road and 129th Street. The distance traveled here is .2 miles. The trucks cross 129th Street 24 times per day.

The trailers are specially designed with cradles to hold steel coils in place. The trailers have a bed height and width of 68 and 114 inches, respectively, and a maximum height of 14 feet.

Unloaded, these tractor-trailer combinations have a gross weight of 77,000 pounds. When fully loaded their gross weight is 263,171 pounds. The trailers have off-road tires to distribute this weight and avoid damaging roads, both inside and outside the plant. The tractors' maximum speed is 30-35 mph, but only 15 mph when moving a fully loaded trailer. These vehicles have many of the same features of a typical tractor and trailer, but do not meet all of the parts and accessories requirements in 49 CFR part 393.

All employee-drivers are required to hold CDLs and adhere to the regulations that apply to CMV drivers. When employee-drivers move these vehicles, they are fully marked as an “oversize load” and have flags on the front of the tractor. Driving these vehicles amounts to 10 percent of the employee-drivers' total work day. ArcelorMittal contends that these employee-drivers do not work more than 16 hours per day and advises that a 16-hour work day is the exception, not the rule.

According to ArcelorMittal, the current hours-of-service (HOS) regulations create problems as employee-drivers typically work an 8-hour shift plus overtime while employees in the production and shipping areas work 12-hour shifts. Employee-drivers must go home under the current arrangement, leaving a 4-hour gap between production and the driver's schedule, creating a possible shortage of coils for shipping or processing. ArcelorMittal asserts that the limited number of employees who drive the CMVs make it difficult to schedule moves. ArcelorMittal anticipates that only 3 of the 24 crossings at each noted intersection would occur after the 14th hour on-duty.

ArcelorMittal requested a complete exemption from 49 CFR part 395 for its “internal logistics” drivers to enable them to follow the same schedule as the employees in the production and shipping areas. The applicant could then minimize the chances of possible shortages of coils for shipping or processing. ArcelorMittal advised that it would ensure that all employee-drivers would not work more than 16 hours per shift, would receive 8 hours off duty between shifts, and would not be allowed to drive more than 10 percent of their total work day.

As previously noted, the vehicles used to transport steel coils have many of the same features as a typical tractor and trailer, but do not meet all of the requirements for parts and accessories in 49 CFR part 393. ArcelorMittal therefore requested exemptions for its coil-carrier trailers from the heavy hauler trailer definition in § 393.5; the required height of rear side marker lights in § 393.11 Table 1—Footnote 4; the tire loading restrictions in § 393.75(f); and the coil securement requirements in § 393.120.

According to ArcelorMittal, its equipment was designed for in-facility use and very limited road use. Public roadways are crossed only when necessary, and oversize-overweight permits are obtained from local authorities when required. The applicant advises that it has never had an issue with its equipment or drivers at the crossings mentioned above. The coils are well-secured in the trailers due to the design of the cradles. The time needed to secure the coils in compliance with part 393 would be longer than the transit time from one part of the plant to another.

ArcelorMittal asserted that it has taken additional precautions to use public roadways for the shortest possible distances and only at controlled intersections. The applicant ensures that all lights are properly working on both the tractor and trailer. It also flags and marks the vehicles as “oversize” loads. Trailers have conspicuity tape down the entire side to make them more visible to other traffic. The applicant believes that its additional precautions ensure a level of safety that is equivalent to or exceeds the level of safety achieved by following the regulations.

ArcelorMittal acknowledged in its application that these “internal logistics” drivers would remain subject to all of the other applicable Federal regulations. This includes qualification of drivers, controlled substance and alcohol testing and inspection, and maintenance and repair of vehicles.

Included in ArcelorMittal's application are illustrations of the plant's location, public roads crossed, and pictures of the tractors and trailers used to transport the steel coils. A copy of ArcelorMittal's application for the exemptions is available for review in the docket for this notice.

On March 22, 2016, FMCSA published notice of this application and requested public comment (81 FR 15217). Four comments were submitted.

Mr. Keith Case wrote, “There are other options to handle this situation that do not include having a special exemption for one company. The company can hire additional drivers/workers to do this.” Ms. Ingrid Harris commented, “I do not think that it's ok to give any company waivers to have drivers work longer hours. At the end of the day the driver still has to drive home and is tired. This will just cause more issues.” Mr. Scott Olson stated, “I do not support any exemptions for anybody for any reason. If we make a rule, everybody needs to abide by it. If we don't like the rule, get rid of it.”

The Advocates for Highway and Auto Safety stated that “ArcelorMittal's request for an exemption from the HOS regulations should be denied as granting such an exemption would result in a substantial reduction in the level of safety currently provided by the regulations. In addition, there is practical and common sense alternative readily available to the company other than the exemption. Finally, while Advocates does not oppose ArcelorMittal's request for an exemption for its vehicles from certain sections of 49 CFR part 393, FMCSA must be explicit that such an exemption is strictly limited in its scope to those vehicles and roadways described in the application.”

Prior to publishing the Federal Register notice announcing the receipt of ArcelorMittal's exemptions request, FMCSA ensured that the motor carrier possessed an active USDOT registration, minimum required levels of insurance, and was not subject to any “imminent hazard” or other out-of-service orders. The Agency conducted a comprehensive investigation of the safety performance history of the motor carrier during the review process. As part of this process, FMCSA reviewed its Motor Carrier Management Information System safety records, including inspection and accident reports submitted to FMCSA by State agencies.

The FMCSA has evaluated ArcelorMittal's application for exemptions and the public comments. The Agency believes that ArcelorMittal's overall safety performance, as well as a number of other factors discussed below, will enable it to achieve a level of safety that is equivalent to, or greater than the level of safety achieved without the exemptions (49 CFR 381.305(a)).

These exemptions are being granted under extremely narrow conditions. One exemption is restricted to ArcelorMittal's employee-drivers to enable them to work up to 16 consecutive hours in a duty period and return to work with a minimum of at least 8 hours off duty when necessary. This is somewhat comparable to current HOS regulations that allow certain “short-haul” drivers a 16-hour driving “window” once a week (49 CFR 395.1(o)) and other non-CDL short-haul drivers two 16-hour duty periods per week (49 CFR 395.1(e)(2)), provided specified conditions are met. However, current regulations require a minimum of 10 hours off duty between duty periods.

Section 381.305(a) specifies that motor carriers “. . . may apply for an exemption if one or more Federal Motor Carrier Safety Regulations prevents you from implementing more efficient or effective operations that would maintain a level of safety equivalent to, or greater than, the level achieved without the exemption.”

The other exemption is restricted to ArcelorMittal's coil carriers as described in its application. The exemption enables ArcelorMittal's CMVs that do not meet the parts and accessories requirements in part 393 to use two short segments of public highway to move coils from one part of the plant to another for shipment to its customers. The CMVs operated by ArcelorMittal's drivers will be exposed to other traffic for very brief periods. The CMVs cross Riley Road, where they travel 80 feet. The length of the crossing at Dickey Road and 129th Street is .2 mile. The CMVs cross both points 24 times per day.

The exemptions from the requirements of 49 CFR part 395 and certain sections in 49 CFR part 393 (§§ 393.5; 393.11 Table 1—Footnote 4; 393.75(f); and 393.120) are granted for the period from September 23, 2016through September 23, 2021, for drivers employed by ArcelorMittal and certain CMVs used by ArcelorMittal to transport coils.

The exemption from the requirements of 49 CFR part 395 is restricted to ArcelorMittal's internal logistics drivers. Drivers utilizing the exemption may work up to 16 consecutive hours in a duty period and return to work with a minimum of at least 8 hours off duty when necessary.

The exemption from certain sections in 49 CFR part 393 (§§ 393.5; 393.11 Table 1—Footnote 4; 393.75(f); and 393.120) is restricted to ArcelorMittal's CMVs that transport coils. The CMVs must only cross on Riley Road, where they travel 80 feet and Dickey Road and 129th Street where they travel .2 miles to move coils from one part of the plant to another for shipment to its customers. All drivers must have CDLs and drivers and vehicles must comply with all other applicable provisions of the Federal Motor Carrier Safety Regulations. ArcelorMittal must maintain any oversize-overweight permits required by local authorities.

In accordance with 49 U.S.C. 31315(d), during the period these exemptions are in effect, no State shall enforce any law or regulation that conflicts with or is inconsistent with these exemptions with respect to a firm or person operating under these exemptions.

ArcelorMittal must notify FMCSA within 5 business days of any accident (as defined in 49 CFR 390.5), involving any of the motor carrier's CMVs operating under the terms of these exemptions. The notification must be by email to [email protected], and include the following information:

The FMCSA does not believe the motor carrier, the drivers, and CMVs covered by the exemptions will experience any deterioration of their safety record. However, should this occur, FMCSA will take all steps necessary to protect the public interest, including revocation of the exemptions. The FMCSA will immediately revoke the exemptions for failure to comply with its terms and conditions.