Federal Register Vol. 81, No.186,

Federal Register Volume 81, Issue 186 (September 26, 2016)

Page Range65853-66178
FR Document

81_FR_186
Current View
Page and SubjectPDF
81 FR 66095 - Sunshine Act MeetingPDF
81 FR 66111 - Sunshine Act MeetingPDF
81 FR 66092 - Regular Board of Directors Sunshine Act MeetingPDF
81 FR 66118 - Culturally Significant Objects Imported for Exhibition Determinations: “Time and Cosmos in Greco-Roman Antiquity” ExhibitionPDF
81 FR 66118 - Culturally Significant Objects Imported for Exhibition Determinations: “Martin Luther: Art and the Reformation” ExhibitionPDF
81 FR 66093 - Sunshine Act Meeting NoticePDF
81 FR 66094 - Temporary Emergency Committee of the Board of Governors; Sunshine Act MeetingPDF
81 FR 66059 - Six-Month Extension of Temporary Protected Status Benefits for Orderly Transition Before Termination of Liberia's Designation for Temporary Protected StatusPDF
81 FR 66054 - Six-Month Extension of Temporary Protected Status Benefits for Orderly Transition Before Termination of Sierra Leone's Designation for Temporary Protected StatusPDF
81 FR 66064 - Six-Month Extension of Temporary Protected Status Benefits for Orderly Transition Before Termination of Guinea's Designation for Temporary Protected StatusPDF
81 FR 65995 - Forest Resource Coordinating CommitteePDF
81 FR 66077 - Indian Gaming; Extension of Tribal-State Class III Gaming Compact (Rosebud Sioux Tribe and the State of South Dakota)PDF
81 FR 65888 - Drawbridge Operation Regulation; Sacramento River, Sacramento, CAPDF
81 FR 66005 - Application to Export Electric Energy; BioUrja Power, LLCPDF
81 FR 66131 - Proposed Collection; Comment Request for Form 8734PDF
81 FR 66051 - Agency Information Collection Activities: Proposed Collection; Comment Request; FEMA Preparedness Grants: Homeland Security Grant Program (HSGP)PDF
81 FR 66133 - Proposed Collection; Comment RequestPDF
81 FR 66128 - Proposed Collection; Comment RequestPDF
81 FR 65917 - Fluopicolide; Pesticide TolerancesPDF
81 FR 66132 - Proposed Collection; Comment Request for Form 8873PDF
81 FR 66118 - Review of the Designation as a Foreign Terrorist Organization of al-Aqsa Martyrs' Brigade (and Other Aliases)PDF
81 FR 66124 - Proposed Collection; Comment Request for Revenue Procedure 2012-25PDF
81 FR 66118 - Executive Order 13224 Designation of Jund al-Aqsa, aka JAA, aka Jund Al-Aqsa, aka The Soldiers of Aqsa, aka Soldiers of al-Aqsa, aka Sarayat al-Quds as a Specially Designated Global TerroristPDF
81 FR 66069 - 60-Day Notice of Proposed Information Collection: Notice of Proposed Information Collection for Public Comment; Electronic Line of Credit Control System (eLOCCS) System AccessPDF
81 FR 66121 - Proposed Collection; Comment Request for Form 1120-NDPDF
81 FR 66071 - 30-Day Notice of Proposed Information Collection: Veterans Home Rehabilitation ProgramPDF
81 FR 66016 - Receipt of Information Under the Toxic Substances Control ActPDF
81 FR 66013 - Notice of Approval of Clean Air Act Permit for Navajo Generating StationPDF
81 FR 66123 - Proposed Collection; Comment Request for Form 6497PDF
81 FR 66128 - Proposed Collection; Comment Request for Regulation ProjectPDF
81 FR 66130 - Proposed Collection; Comment Request for Regulation ProjectPDF
81 FR 66015 - Clean Air Act Advisory Committee (CAAAC): Request for NominationsPDF
81 FR 66126 - Proposed Collection; Comment Request for Regulation ProjectPDF
81 FR 66050 - The U.S. Customs and Border Protection User Fee Advisory Committee (UFAC)PDF
81 FR 66008 - Combined Notice of FilingsPDF
81 FR 66009 - Records Governing Off-the-Record Communications; Public NoticePDF
81 FR 66010 - Combined Notice of Filings #2PDF
81 FR 66007 - Combined Notice of Filings #1PDF
81 FR 66009 - Combined Notice of Filings #1PDF
81 FR 66031 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
81 FR 66127 - Proposed Collection; Comment Request for Certain Retirement Plans Under Sections 401(k) and 401(m) and Guidance on Cash or Deferred ArrangementsPDF
81 FR 66135 - Proposed Collection; Comment Request for Form 8908PDF
81 FR 66125 - Proposed Collection; Comment Request for Form 8612PDF
81 FR 66014 - Agency Information Collection Activities; Proposed Renewal of an Existing Collection (EPA ICR No. 1632.05 and OMB Control No. 2070-0133); Comment RequestPDF
81 FR 66012 - Agency Information Collection Activities; Proposed Renewal of an Existing Collection (EPA ICR No. 2330.03 and OMB Control No. 2070-0179; Comment RequestPDF
81 FR 66125 - Proposed Collection; Comment Request for Notice 2006-109.PDF
81 FR 66016 - Agency Information Collection Activities; Proposed Renewal of an Existing Collection (EPA ICR No. 1249.11 and OMB Control No. 2070-0074); Comment RequestPDF
81 FR 66133 - Proposed Collection; Comment Request for [REG-106542-98] T.D. 9032PDF
81 FR 65987 - Class I Railroad Accounting and Financial Reporting-Transportation of Hazardous MaterialsPDF
81 FR 66048 - National Institute of Neurological Disorders and StrokePDF
81 FR 66041 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingPDF
81 FR 66045 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingPDF
81 FR 66041 - National Institute of Allergy And Infectious Diseases; Notice of Closed MeetingPDF
81 FR 66042 - National Human Genome Research Institute; Notice of Closed MeetingPDF
81 FR 66131 - Proposed Collection; Comment Request for Form 6197PDF
81 FR 66045 - National Human Genome Research Institute; Notice of Closed MeetingPDF
81 FR 66046 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 66047 - Prospective Grant of Exclusive Patent License: Development of Adeno-Associated Virus-Based Vectors for the Treatment of Menkes Disease and Related Copper Transport DisordersPDF
81 FR 66132 - Proposed Collection; Comment Request for Revenue ProcedurePDF
81 FR 66123 - Proposed Collection; Comment Request for Regulation ProjectPDF
81 FR 66135 - Proposed Collection; Comment Request for Regulation ProjectPDF
81 FR 66124 - Proposed Collection; Comment Request for Revenue Procedure 98-19PDF
81 FR 66127 - Proposed Collection; Comment Request for Form 8868PDF
81 FR 66134 - Proposed Collection; Comment Request for Form 720-CSPDF
81 FR 66000 - New England Fishery Management Council; Public MeetingPDF
81 FR 66122 - Proposed Collection; Comment Request for Notice 2006-107PDF
81 FR 66129 - Proposed Collection; Comment Request for Revenue Procedure 2011-34, Rules for Certain Rental Real Estate ActivitiesPDF
81 FR 66023 - Submission for OMB Review; Termination Settlement Proposal Forms-FAR (SF 1435 Through 1440)PDF
81 FR 65889 - Safety Zone; Arkansas River, Little Rock, ARPDF
81 FR 65874 - Repair Stations; Response to Public CommentsPDF
81 FR 66119 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: ATC Authorizations in Controlled Airspace Under Part 107PDF
81 FR 66119 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Mitsubishi MU-2B Series Airplane Special Training, Experience, and Operating ProceduresPDF
81 FR 66114 - Department of State Bureau of South and Central Asian Affairs: Request for Proposals for the Design, Development, Installation, Operation, and Final Disposition of a U.S. Pavilion at the Astana Expo 2017PDF
81 FR 66035 - Generic Drug User Fees; Public Meeting; Request for CommentsPDF
81 FR 66049 - National Boating Safety Advisory CouncilPDF
81 FR 66136 - Proposed Information Collection (Customer Satisfaction Surveys); Activity: Comment RequestPDF
81 FR 66039 - A List of Biomarkers Used as Outcomes in Development of FDA-Approved New Molecular Entities and New Biological Therapeutics (October 2007 to December 2015); Establishment of a Public Docket; CorrectionPDF
81 FR 66093 - New Postal ProductPDF
81 FR 65853 - Revision to Nonprocurement Suspension and Debarment RegulationsPDF
81 FR 66005 - Proposed Agency Information CollectionPDF
81 FR 65998 - Marine Mammals; File No. 18529PDF
81 FR 66004 - Environmental Management Site-Specific Advisory Board, PaducahPDF
81 FR 66040 - Supplement for Zika Response, a Single-Award Deviation From Competition Requirements for the National Center for Medical Home Implementation Cooperative AgreementPDF
81 FR 66001 - Meeting of the Board of Advisors (BOA) to The Presidents of the Naval Postgraduate School (NPS) and the Naval War College (NWC)PDF
81 FR 66024 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
81 FR 65888 - Drawbridge Operation Regulation; Rancocas Creek, Burlington, NJPDF
81 FR 66003 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Ronald E. McNair Postbaccalaureate Achievement Program Annual Performance ReportPDF
81 FR 65875 - Army National Military CemeteriesPDF
81 FR 66001 - Notice of Availability of Government-Owned Inventions; Available for LicensingPDF
81 FR 66000 - Notice of Intent To Grant Exclusive Patent License to GoXtudio, Inc.; Tempe, AZPDF
81 FR 65996 - Deschutes Provincial Advisory CommitteePDF
81 FR 66077 - Colorado River Basin Salinity Control Advisory Council Notice of Public MeetingPDF
81 FR 66077 - Notice of Public Meeting Tri-State Fuel Break Joint Subcommittee of the Boise and Southeast Oregon Resource Advisory Councils to the Boise and Vale DistrictsPDF
81 FR 66022 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 65997 - New England Fishery Management Council; Public MeetingPDF
81 FR 66026 - Agency Forms Undergoing Paperwork Reduction Act ReviewPDF
81 FR 66028 - Agency Forms Undergoing Paperwork Reduction Act ReviewPDF
81 FR 66030 - Agency Forms Undergoing Paperwork Reduction Act ReviewPDF
81 FR 66120 - Sanctions Actions Pursuant to Executive Order 13224PDF
81 FR 66121 - Sanctions Actions Pursuant to Executive Order 13224PDF
81 FR 65998 - Gulf of Mexico Fishery Management Council; Public MeetingPDF
81 FR 66022 - Agency Information Collection Activities; Submission for OMB Review; Comment RequestPDF
81 FR 66053 - Agency Information Collection Activities: Immigrant Petition by Alien Entrepreneur, Form I-526; Revision of a Currently Approved CollectionPDF
81 FR 66091 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Domestic Agricultural In-Season Wage ReportPDF
81 FR 66091 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Demonstration and Evaluation of Community College Interventions for Youth and Young Adults With DisabilitiesPDF
81 FR 66021 - Notice of Termination; 10370 First Commercial Bank of Tampa Bay, Tampa, FloridaPDF
81 FR 65995 - Submission for OMB Review; Comment RequestPDF
81 FR 66034 - Submission for OMB Review; Comment RequestPDF
81 FR 66029 - Breast and Cervical Cancer Early Detection and Control Advisory Committee (BCCEDCAC): Notice of Charter RenewalPDF
81 FR 66029 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP): Initial ReviewPDF
81 FR 66030 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP): Initial ReviewPDF
81 FR 66029 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel: Notice of Charter RenewalPDF
81 FR 66029 - Advisory Committee on Immunization PracticesPDF
81 FR 66026 - Request for Nominations of Candidates To Serve on the Advisory Council for the Elimination of Tuberculosis (ACET)PDF
81 FR 66004 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; IES Research Training Program SurveysPDF
81 FR 66020 - Federal Advisory Committee Act; Disability Advisory CommitteePDF
81 FR 66048 - Prospective Grant of Start-Up Exclusive Evaluation Patent License: Development of Autologous Tumor-reactive T Cells Isolated From Peripheral Blood for the Treatment of Metastatic Follicular Thyroid Cancer and Metastatic Soft Tissue SarcomasPDF
81 FR 66111 - Self-Regulatory Organizations; NYSE Arca, Inc.; NYSE MKT LLC; Order Approving Proposed Rule Changes To Provide for the Rejection of Certain Electronic Complex OrdersPDF
81 FR 66095 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing of Amendment No. 1 to Proposed Rule Change Amending the Co-Location Services Offered by the Exchange To Add Certain Access and Connectivity FeesPDF
81 FR 66113 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Order Granting Approval of a Proposed Rule Change, as Modified by Amendment Nos. 1 and 2, To Add Nasdaq Rule 7046 (Nasdaq Trading Insights)PDF
81 FR 66105 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing of a Proposed Rule Change Relating to SPX Combo OrdersPDF
81 FR 66109 - Order Granting Limited Exemptions From Exchange Act Rule 10b-17 and Rules 101 and 102 of Regulation M to Amplify YieldShares Prime 5 Dividend ETF Pursuant to Exchange Act Rule 10b-17(b)(2) and Rules 101(d) and 102(e) of Regulation MPDF
81 FR 66043 - National Institute of Mental Health; Notice of Closed MeetingsPDF
81 FR 66045 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of Closed MeetingPDF
81 FR 66042 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of MeetingsPDF
81 FR 66045 - Eunice Kennedy Shriver National Institute of Child Health & Human Development; Notice of Closed MeetingPDF
81 FR 66041 - National Heart, Lung, and Blood Institute, Notice of MeetingPDF
81 FR 66042 - National Center for Advancing Translational Sciences; Notice of Closed MeetingsPDF
81 FR 66043 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 66017 - Information Collections Being Submitted for Review and Approval to the Office of Management and BudgetPDF
81 FR 66084 - Investigations Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
81 FR 66088 - Amended Certification Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
81 FR 66085 - Notice of Determinations Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
81 FR 66089 - Convergys Corporation; Including Workers Whose Wages Were Reported Through Stream International, Inc.; Jacksonville, Texas; Amended Certification Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
81 FR 66090 - Carter Fuel Systems, a Subsidiary of Crowne Group LLC, Including On-Site Leased Workers From Aerotek, Crossfire Group, and Entegee Engineering, Logansport, Indiana; Amended Certification Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
81 FR 66083 - Amended Certification Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
81 FR 66090 - Essar Steel Minnesota LLC, a Wholly Owned Subsidiary of Essar Global Fund Limited Including On-Site Leased Workers From Express Employment Professionals, Always There Staffing, Vesterheim Geoscience PLC, and Rod Johnson & Associates, Hibbing, Minnesota; Notice of Affirmative Determination Regarding Application for ReconsiderationPDF
81 FR 66085 - General Electric Company, GE Transportation Division, Including Workers Whose Wages Were Reported Through TAD PGS Inc. Including On-Site Leased Workers From Adecco USA, TCS (TATA), Chemetall US Inc., AVI, Carehere, Climatech Inc., G4S Secure Solutions, OMH HealthEdge Holdings Inc., Phoenix Llc, Simmers Crane, AND Unitek Technical Services, 1503 West Main Street and 660 Barkeyville Road, Grove City, Pennsylvania; Amended Certification Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
81 FR 66083 - Halliburton Energy Services, 2600 S. 2nd Street, Duncan, Oklahoma; Notice of Affirmative Determination Regarding Application for ReconsiderationPDF
81 FR 66006 - 4C Aquisition, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 66006 - Summit Farms Solar, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 66011 - Combined Notice of FilingsPDF
81 FR 66008 - Combined Notice of Filings #1PDF
81 FR 66079 - Bulk Manufacturer of Controlled Substances Application: Cerilliant CorporationPDF
81 FR 66076 - 60-Day Notice of Proposed Information Collection: Family Options Study: Long-Term TrackingPDF
81 FR 66081 - Importer of Controlled Substances Application: Catalent CTS, LLCPDF
81 FR 66052 - Critical Infrastructure Partnership Advisory CouncilPDF
81 FR 66075 - Notice of Web Availability: Memorandum of Understanding Regarding U.S. Department of Housing and Urban Development Compliance With the National Environmental Policy Act and Related Laws and AuthoritiesPDF
81 FR 66000 - Meeting of the Board of Visitors of Marine Corps UniversityPDF
81 FR 66094 - Agency Forms Submitted for OMB Review, Request for CommentsPDF
81 FR 66082 - Agency Information Collection Activities; Proposed Collection, Comments Requested; Extension of a Currently Approved Collection; Cargo Theft Incident ReportPDF
81 FR 66078 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Application for an Amended Federal Firearms License (ATF F 5300.38)PDF
81 FR 66073 - 60-Day Notice of Proposed Information Collection: Recordkeeping for HUD's Continuum of Care ProgramPDF
81 FR 66072 - 60-Day Notice of Proposed Information Collection: FHA-Insured Mortgage Loan Servicing of Payments, Prepayments, Terminations, Assumptions and TransfersPDF
81 FR 66070 - 60-Day Notice of Proposed Information Collection: Family Report, Moving to Work Family ReportPDF
81 FR 66073 - 60-Day Notice of Proposed Information Collection: Financial Statement of Corporate Application for Cooperative Housing MortgagePDF
81 FR 65999 - Takes of Marine Mammals Incidental to Specified Activities; U.S. Navy Training and Testing Activities in the Mariana Islands Training and Testing Study Area and the Atlantic Fleet Training and Testing Study AreaPDF
81 FR 66013 - Environmental Impact Statements; Notice of AvailabilityPDF
81 FR 65897 - Approval of Air Quality Implementation Plans; Missouri State Implementation Plan for the 2008 Lead StandardPDF
81 FR 65984 - Service Rules Governing Narrowband Operations in the 769-775/799-805 MHz BandsPDF
81 FR 65924 - Chemical Data Reporting; 2016 Submission Period ExtensionPDF
81 FR 65983 - Reporting for Qualified Tuition and Related Expenses; Education Tax Credits; CorrectionPDF
81 FR 65891 - Sale and Disposal of National Forest System Timber; Forest Products for Traditional and Cultural PurposesPDF
81 FR 66138 - Revised Medical Criteria for Evaluating Mental DisordersPDF
81 FR 65988 - Atlantic Highly Migratory Species; Individual Bluefin Quota Program; Inseason TransfersPDF
81 FR 65899 - Air Plan Approval; Georgia; Prong 4-2008 Ozone, 2010 NO2PDF
81 FR 65901 - Treatment of Indian Tribes in a Similar Manner as States for Purposes of Section 303(d) of the Clean Water ActPDF
81 FR 65948 - Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Section 105, Relay Services for Deaf-Blind IndividualsPDF
81 FR 65997 - Warm Spring Habitat Enhancement EIS-Helena-Lewis and Clark National Forest, Jefferson County, MontanaPDF
81 FR 65860 - Airworthiness Directives; Airbus AirplanesPDF
81 FR 65926 - Assessment and Collection of Regulatory Fees for Fiscal Year 2016PDF
81 FR 65872 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 65857 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 65980 - Airworthiness Directives; Airbus AirplanesPDF
81 FR 65864 - Airworthiness Directives; The Boeing Company AirplanesPDF

Issue

81 186 Monday, September 26, 2016 Contents Agency Toxic Agency for Toxic Substances and Disease Registry NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66024-66026 2016-23094 Agriculture Agriculture Department See

Food and Nutrition Service

See

Forest Service

Alcohol Tobacco Firearms Alcohol, Tobacco, Firearms, and Explosives Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for an Amended Federal Firearms License, 66078-66079 2016-23006 Army Army Department RULES Army National Military Cemeteries, 65875-65888 2016-23087 NOTICES Exclusive Patent Licenses: GoXtudio, Inc.; Tempe, AZ, 66000 2016-23084 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66026-66031 2016-23072 2016-23073 2016-23074 Charter Renewals: Breast and Cervical Cancer Early Detection and Control Advisory Committee, 66029 2016-23057 Disease, Disability, and Injury Prevention and Control Special Emphasis Panel, 66029 2016-23054 Meetings: Advisory Committee on Immunization Practices, 66029-66030 2016-23053 Disease, Disability, and Injury Prevention and Control Special Emphasis Panel, 66029-66030 2016-23055 2016-23056 Requests for Nominations: Advisory Council for the Elimination of Tuberculosis, 66026 2016-23052 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66031-66033 2016-23157 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Evaluation of the Child Welfare Capacity Building Collaborative: Part Two, 66034-66035 2016-23058 Coast Guard Coast Guard RULES Drawbridge Operations: Rancocas Creek, Burlington, NJ, 65888 2016-23090 Sacramento River, Sacramento, CA, 65888 2016-23211 Safety Zones: Arkansas River, Little Rock, AR, 65889-65891 2016-23122 NOTICES Meetings: National Boating Safety Advisory Council, 66049-66050 2016-23110 Commerce Commerce Department See

National Oceanic and Atmospheric Administration

Defense Department Defense Department See

Army Department

See

Navy Department

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Termination Settlement Proposal Forms, 66023-66024 2016-23123
Drug Drug Enforcement Administration NOTICES Importers of Controlled Substances; Applications: Catalent CTS, LLC, 66081-66082 2016-23017 Cerilliant Corporation, 66079-66081 2016-23019 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: IES Research Training Program Surveys, 66004 2016-23051 Ronald E. McNair Postbaccalaureate Achievement Program Annual Performance Report, 66003-66004 2016-23089 Employment and Training Employment and Training Administration NOTICES Worker Adjustment Assistance Eligibility; Amended Certifications: Carter Fuel Systems, et al.; Logansport, IN, 66090 2016-23029 Convergys Corp., Jacksonville, TX, 66089-66090 2016-23030 General Electric Co., GE Transportation Division, et al.; Grove City, PA, 66085 2016-23026 International Business Machines, Global Technology Services division, et al., 66083 2016-23028 Verso Corp., 66088-66089 2016-23032 Worker Adjustment Assistance Eligibility; Determinations, 66085-66088 2016-23031 Worker Adjustment Assistance Eligibility; Investigations, 66084-66085 2016-23033 Worker Adjustment Assistance Eligibility; Reconsiderations: Essar Global Fund Ltd., et al., Hibbing, MN, 66090 2016-23027 Halliburton Energy Services, Duncan, OK, 66083 2016-23025 Energy Department Energy Department See

Energy Efficiency and Renewable Energy Office

See

Federal Energy Regulatory Commission

NOTICES Applications to Export Electric Energy: BioUrja Power, LLC, 66005 2016-23200 Meetings: Environmental Management Site-Specific Advisory Board, Paducah, 66004-66005 2016-23098
Energy Efficiency Energy Efficiency and Renewable Energy Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66005-66006 2016-23101 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Georgia; Prong 4-2008 Ozone, 2010 NO2, SO2, and 2012 PM2.5, 65899-65901 2016-22887 Missouri State Implementation Plan for the 2008 Lead Standard, 65897-65899 2016-22981 Chemical Data Reporting; 2016 Submission Period Extension, 65924-65926 2016-22974 Pesticide Tolerances: Fluopicolide, 65917-65924 2016-23184 Treatment of Indian Tribes in a Similar Manner as States for Purposes of Sections of the Clean Water Act, 65901-65917 2016-22882 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66012-66017 2016-23146 2016-23148 2016-23151 Environmental Impact Statements; Availability, etc.: Weekly Summary, 66013 2016-22990 Permit Approvals: Navajo Generating Station, 66013-66014 2016-23170 Receipt of Information under the Toxic Substances Control Act, 66016 2016-23172 Requests for Nominations: Clean Air Act Advisory Committee, 66015-66016 2016-23165 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus Airplanes, 65860-65864 2016-22460 The Boeing Co. Airplanes, 65857-65860, 65864-65874 2016-21602 2016-22187 2016-22188 Repair Stations, 65874-65875 2016-23121 PROPOSED RULES Airworthiness Directives: Airbus Airplanes, 65980-65983 2016-21703 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: ATC Authorizations in Controlled Airspace under Part 107, 66119 2016-23118 Mitsubishi MU-2B Series Airplane Special Training, Experience, and Operating Procedures, 66119-66120 2016-23117 Federal Communications Federal Communications Commission RULES Assessment and Collection of Regulatory Fees for Fiscal Year 2016, 65926-65948 2016-22216 Relay Services for Deaf-Blind Individuals: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, 65948-65979 2016-22713 PROPOSED RULES Narrowband Operations in the 769-775/799-805 MHz Bands, 65984-65987 2016-22978 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66017-66020 2016-23034 Requests for Nominations: Disability Advisory Committee, 66020-66021 2016-23049 Federal Deposit Federal Deposit Insurance Corporation NOTICES Terminations of Receivership: 10370 First Commercial Bank of Tampa Bay, Tampa, FL, 66021-66022 2016-23061 Federal Emergency Federal Emergency Management Agency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: FEMA Preparedness Grants: Homeland Security Grant Program, 66051-66052 2016-23191 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 66007-66012 2016-23020 2016-23021 2016-23022 2016-23158 2016-23159 2016-23160 2016-23162 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: 4C Aquisition, LLC, 66006-66007 2016-23024 Summit Farms Solar, LLC, 66006 2016-23023 Records Governing Off-the-Record Communications, 66009-66010 2016-23161 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 66022 2016-23077 Federal Trade Federal Trade Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66022-66023 2016-23065 Food and Drug Food and Drug Administration NOTICES List of Biomarkers Used as Outcomes in Development of FDA-Approved New Molecular Entities and New Biological Therapeutics October 2007 to December 2015; Correction, 66039-66040 2016-23106 Meetings: Generic Drug User Fees, 66035-66039 2016-23111 Food and Nutrition Food and Nutrition Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 65995 2016-23060 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 66120-66121 2016-23068 2016-23069 2016-23070 Forest Forest Service RULES Sale and Disposal of National Forest System Timber: Forest Products for Traditional and Cultural Purposes, 65891-65897 2016-22929 NOTICES Environmental Impact Statements; Availability, etc.: Warm Spring Habitat Enhancement, Helena-Lewis and Clark National Forest, Jefferson County, MT; Withdrawal, 65997 2016-22702 Meetings: Deschutes Provincial Advisory Committee, 65996-65997 2016-23083 Requests for Nominations: Forest Resource Coordinating Committee, 65995-65996 2016-23219 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Termination Settlement Proposal Forms, 66023-66024 2016-23123 Health and Human Health and Human Services Department See

Agency for Toxic Substances and Disease Registry

See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Children and Families Administration

See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

Health Resources Health Resources and Services Administration NOTICES Non-Competitive Awards: National Center for Medical Home Implementation Cooperative Agreement Zika Response, 66040-66041 2016-23096 Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

See

U.S. Citizenship and Immigration Services

See

U.S. Customs and Border Protection

NOTICES Meetings: Critical Infrastructure Partnership Advisory Council, 66052-66053 2016-23015
Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals Family Report, Moving to Work Family Report, 66070-66071 2016-23000 Veterans Home Rehabilitation Program, 66071-66072 2016-23173 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Electronic Line of Credit Control System System Access, 66069-66070 2016-23176 Family Options Study—Long-Term Tracking, 66076-66077 2016-23018 FHA-Insured Mortgage Loan Servicing of Payments, Prepayments, Terminations, Assumptions and Transfers, 66072-66073 2016-23001 Financial Statement of Corporate Application for Cooperative Housing Mortgage, 66073 2016-22999 Recordkeeping for HUD's Continuum of Care Program, 66073-66075 2016-23004 Memorandum of Understanding: Compliance with the National Environmental Policy Act and Related Laws and Authorities, 66075-66076 2016-23014 Indian Affairs Indian Affairs Bureau NOTICES Indian Gaming: Extension of Tribal-State Class III Gaming Compact; Rosebud Sioux Tribe and the State of South Dakota, 66077 2016-23214 Interior Interior Department See

Indian Affairs Bureau

See

Land Management Bureau

See

Reclamation Bureau

RULES Nonprocurement Suspension and Debarment Regulations, 65853-65857 2016-23102
Internal Revenue Internal Revenue Service PROPOSED RULES Reporting for Qualified Tuition and Related Expenses; Education Tax Credits; Correction, 65983-65984 2016-22938 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66121-66136 2016-23125 2016-23126 2016-23128 2016-23130 2016-23131 2016-23132 2016-23133 2016-23137 2016-23145 2016-23147 2016-23150 2016-23152 2016-23154 2016-23156 2016-23164 2016-23166 2016-23168 2016-23169 2016-23175 2016-23182 2016-23187 2016-23188 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Extension of Time to File an Exempt Organization Return, 66127-66128 2016-23129 Comment Request for Form 8734, 66131-66132 2016-23192 Revenue Procedure 2012-25, 66124 2016-23179 Justice Department Justice Department See

Alcohol, Tobacco, Firearms, and Explosives Bureau

See

Drug Enforcement Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Cargo Theft Incident Report, 66082-66083 2016-23007
Labor Department Labor Department See

Employment and Training Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Demonstration and Evaluation of Community College Interventions for Youth and Young Adults with Disabilities, 66091-66092 2016-23062 Domestic Agricultural In-Season Wage Report, 66091 2016-23063
Land Land Management Bureau NOTICES Meetings: Tri-State Fuel Break Project Joint Subcommittee of the Boise District and Southeast Oregon Resource Advisory Councils, 66077 2016-23079 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Termination Settlement Proposal Forms, 66023-66024 2016-23123 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 66043-66044, 66046-66047 2016-23036 2016-23135 National Center for Advancing Translational Sciences, 66042 2016-23037 National Heart, Lung, and Blood Advisory Council, 66041-66042 2016-23038 National Human Genome Research Institute, 66042, 66045-66046 2016-23136 2016-23138 National Institute of Allergy and Infectious Diseases, 66041, 66045 2016-23139 2016-23140 2016-23141 2016-23142 National Institute of Child Health and Human Development, 66045 2016-23039 National Institute of Diabetes and Digestive and Kidney Diseases, 66042-66043, 66045 2016-23040 2016-23041 National Institute of Mental Health, 66043 2016-23042 National Institute of Neurological Disorders and Stroke, 66048-66049 2016-23143 Proposed Start-up Exclusive Evaluation Patent License: Development of Autologous Tumor-reactive T Cells Isolated from Peripheral Blood for the Treatment of Metastatic Follicular Thyroid Cancer and Metastatic Soft Tissue Sarcomas, 66048 2016-23048 Prospective Grants of Exclusive Licenses: Development of Adeno-Associated Virus-Based Vectors for the Treatment of Menkes Disease and Related Copper Transport Disorders, 66047-66048 2016-23134 National Oceanic National Oceanic and Atmospheric Administration PROPOSED RULES Atlantic Highly Migratory Species: Individual Bluefin Quota Program; Inseason Transfers, 65988-65994 2016-22902 NOTICES Meetings: Gulf of Mexico Fishery Management Council, 65998-65999 2016-23067 New England Fishery Management Council, 65997, 66000 2016-23075 2016-23127 Permits: Marine Mammals; File No. 18529, 65998 2016-23099 Takes of Marine Mammals Incidental to Specified Activities: U.S. Navy Training and Testing Activities in the Mariana Islands Training and Testing Study Area and the Atlantic Fleet Training and Testing Study Area, 65999-66000 2016-22997 Navy Navy Department NOTICES Government-Owned Inventions; Availability for Licensing, 66001-66003 2016-23086 Meetings: Board of Advisors to the Presidents of the Naval Postgraduate School and the Naval War College, 66001 2016-23095 Board of Visitors of the Marine Corps University, 66000-66001 2016-23012 Neighborhood Neighborhood Reinvestment Corporation NOTICES Meetings; Sunshine Act, 66092 2016-23321 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Meetings; Sunshine Act, 66093 2016-23264 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Product, 66093-66094 2016-23105 Postal Service Postal Service NOTICES Meetings; Sunshine Act, 66094 2016-23251 Railroad Retirement Railroad Retirement Board NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66094-66095 2016-23011 Reclamation Reclamation Bureau NOTICES Meetings: Colorado River Basin Salinity Control Advisory Council, 66077-66078 2016-23080 Securities Securities and Exchange Commission NOTICES Meetings; Sunshine Act, 66095, 66111 2016-23325 2016-23326 Orders Granting Limited Exemptions from Exchange Act Rules: Amplify YieldShares Prime 5 Dividend ETF, 66109-66111 2016-23043 Self-Regulatory Organizations; Proposed Rule Changes: Chicago Board Options Exchange, Inc., 66105-66109 2016-23044 NASDAQ Stock Market, LLC, 66113-66114 2016-23045 New York Stock Exchange LLC, 66095-66105 2016-23046 NYSE Arca, Inc. and NYSE MKT LLC, 66111-66113 2016-23047 Social Social Security Administration RULES Medical Criteria for Evaluating Mental Disorders, 66138-66178 2016-22908 State Department State Department NOTICES Culturally Significant Objects Imported for Exhibition: Martin Luther—Art and the Reformation, 66118 2016-23278 Time and Cosmos in Greco-Roman Antiquity, 66118 2016-23279 Foreign Terrorist Organization Designations: al-Aqsa Martyrs' Brigade (and other aliases), 66118-66119 2016-23180 Request for Proposals for the Design, Development, Installation, Operation, and Final Disposition of a U.S. Pavilion; Astana Expo 2017, 66114-66118 2016-23115 Specially Designated Global Terrorists: Jund al-Aqsa, aka JAA, aka Jund Al-Aqsa, aka The Soldiers of Aqsa, aka Soldiers of al-Aqsa, aka Sarayat al-Quds, 66118 2016-23177 Surface Transportation Surface Transportation Board PROPOSED RULES Class I Railroad Accounting and Financial Reporting: Transportation of Hazardous Materials; Withdrawal, 65987-65988 2016-23144 Transportation Department Transportation Department See

Federal Aviation Administration

Treasury Treasury Department See

Foreign Assets Control Office

See

Internal Revenue Service

U.S. Citizenship U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Immigrant Petition by Alien Entrepreneur, 66053 2016-23064 Temporary Protected Status; Extensions and Redesignations: Guinea, 66064-66069 2016-23244 Liberia, 66059-66064 2016-23250 Sierra Leone, 66054-66059 2016-23249 Customs U.S. Customs and Border Protection NOTICES Meetings: User Fee Advisory Committee, 66050-66051 2016-23163 Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Customer Satisfaction Surveys, 66136 2016-23109 Separate Parts In This Issue Part II Social Security Administration, 66138-66178 2016-22908 Reader Aids

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81 186 Monday, September 26, 2016 Rules and Regulations DEPARTMENT OF THE INTERIOR Office of the Secretary 2 CFR Part 1400 [Docket No. DOI-2015-0007; 167D0102DM / DS62400000 / DLSN00000.000000 / DX62401] RIN 1090-AB12 Revision to Nonprocurement Suspension and Debarment Regulations AGENCY:

Office of the Secretary, Interior.

ACTION:

Final rule.

SUMMARY:

This rule revises the U.S. Department of the Interior (DOI) nonprocurement suspension and debarment regulations in order to enhance transparency of the existing process and to clarify the Department's procedures for resolving nonprocurement suspension and debarment actions.

DATES:

This final rule is effective September 26, 2016.

FOR FURTHER INFORMATION CONTACT:

David M. Sims, Debarment Program Director, Office of Acquisition and Property Management, Office of the Secretary, telephone (202) 513-0689; fax (202) 513-7645; or email [email protected]

SUPPLEMENTARY INFORMATION:

I. Background A. Regulatory Framework

On August 31, 2005, the Office of Management and Budget (OMB) issued Guidance for Government-wide suspension and debarment (nonprocurement), codified in part 180 of title 2 of the Code of Federal Regulations (70 FR 51862, August 31, 2005). The OMB Guidance required each agency to issue a brief rule that: (1) Adopted the guidance, giving it regulatory effect for that agency's activities; and (2) stated any agency-specific additions, clarifications, and exceptions to the Government-wide policies and procedures contained in the guidance. On June 18, 2007, DOI issued its regulation implementing the OMB Guidelines at 2 CFR part 1400 (72 FR 33383). Today's rule updates the DOI nonprocurement suspension and debarment regulation at Part 1400.

B. Purpose

The original DOI implementing rule does not specify which DOI organizational component or official will conduct fact-finding proceedings for nonprocurement actions. This amended rule explains that the DOI Debarment Program Director is the official who ordinarily conducts fact-finding proceedings, while permitting the Suspending and Debarring Official to refer the case to another component or office for a fact-finding proceeding. This rule does not change the circumstances under which fact-finding proceedings are available to respondents, nor the criteria and standards that apply in fact-finding proceedings. In addition, this rule clarifies that the nonprocurement suspension and debarment case procedures used by DOI are identical to those DOI uses for the procurement suspension and debarment actions pursuant to the Federal Acquisition Regulation at 48 CFR subpart 9.4. Specifically, this rule sets forth the nonprocurement suspension and debarment action practices and procedures used to find facts in actions where the Suspending and Debarring Official determines that there is a genuine dispute over facts material to the proposed debarment. This rule addresses how persons suspended or proposed for debarment may seek to resolve an action. This rule promotes transparency of DOI internal procedures for resolving suspension and debarment actions.

C. Exemption From Notice and Comment Requirements

The Administrative Procedure Act (APA) requires agencies to publish a notice of proposed rulemaking in the Federal Register and provide a period for public comment before issuing a final rule. 5 U.S.C. 553(b). The APA, however, exempts from the requirement of notice and comment “[r]ules of agency organization, procedure, or practice.” 5 U.S.C. 553(b)(A).

This amended rule clarifies suspension and debarment findings; it does not alter the rights or interests of respondents in such proceedings. This rule also identifies existing suspension and debarment program roles and processes. Finally, this rule adds language that recognizes prior changes to, or adoption of, online Federal databases used to support award eligibility decisions. Accordingly, this rule is a rule of agency procedure, exempt from the notice and comment requirements of the APA.

D. Waiver of 30-Day Delay in Effective Date

The APA also generally requires a 30-day delay in the effective date of final rules after the date of their publication in the Federal Register. 5 U.S.C. 553(d). The 30-day delay may be waived if the agency determines there is good cause to do so because the 30-day delay is impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(d)(3).

There is good cause to waive the 30-day delay in the effective date of this rule, because the delay is unnecessary and contrary to the public interest. As noted above, this rule is procedural and informational, and does not affect the rights or interests of respondents in nonprocurement suspension and debarment actions for which fact-finding proceedings are available. Moreover, this rule clarifies that the procedures to resolve nonprocurement suspension and debarment actions are the same as the procedures DOI uses to resolve procurement suspension and debarment actions. In so doing, this rule will eliminate potential confusion. Thus, delaying its effective date for 30 days is unnecessary and contrary to the public interest.

II. Required Determinations A. Regulatory Planning and Review (E.O. 12866 and 13563)

Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB) will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.

E.O. 13563 reaffirms the principles of E.O. 12866, calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public, where these approaches are relevant, feasible, and consistent with regulatory objectives.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act [SBREFA] of 1996) (5 U.S.C. 601 et seq.), whenever a Federal agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small government jurisdictions). However, no regulatory flexibility analysis is required if the head of an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Thus, for a regulatory flexibility analysis to be required, impacts must exceed a threshold for “significant impact” and a threshold for a “substantial number of small entities.” See 5 U.S.C. 605(b). SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

This rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601, et seq.). This clarification explains that the DOI applies the same procedures and fact-finding process for its nonprocurement and procurement suspension and debarment actions. This rule is merely a clarification of existing process. It makes no substantive change to the 2007 DOI rule, nor does it impose any new requirements on entities subject to a notice of suspension or proposed debarment.

C. Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)). This rule:

1. Does not have an annual effect on the economy of $100 million or more. This rule identifies program roles and clarifies that the DOI fact-finding process for nonprocurement suspension and debarment actions is the same as DOI's fact-finding process for procurement suspension and debarment actions. This rule is a technical clarification that does not alter existing procedures for resolving nonprocurement suspension and debarment actions.

2. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. As explained above, this rule is a technical rule issued to clarify that DOI's procedures for resolving nonprocurement suspension and debarment actions are identical to DOI's current procedures. This rule impacts only those persons suspended or proposed for debarment.

3. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This rule clarifies DOI's internal practices and procedures which furthers transparency.

D. Unfunded Mandates Reform Act

This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. This rule does not have a significant or unique effect on State, local, or tribal governments, or the private sector. This rule does not impose requirements on State, local, or tribal governments. This rule clarifies that the DOI fact-finding process for nonprocurement suspension and debarment actions is the same as DOI's fact-finding process for procurement suspension and debarment actions. This rule impacts only those persons suspended or proposed for debarment. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531, et seq.) is not required.

E. Takings (E.O. 12630)

Under the criteria in section 2 of E.O. 12630, this rule does not have significant takings implications. This rule is a technical rule revision that clarifies that the DOI fact-finding process for nonprocurement suspension and debarment actions is the same as DOI's fact-finding process for procurement suspension and debarment actions. This rule impacts only those persons suspended or proposed for debarment. This rule promotes process transparency of DOI internal suspension and debarment action resolution procedures. A takings implication assessment is not required.

F. Federalism (E.O. 13132)

Under the criteria in section 1 of E.O. 13132, this rule does not have sufficient Federalism implications to warrant the preparation of a Federalism summary impact statement. This rule is a technical rule revision that clarifies that the DOI fact-finding process for nonprocurement suspension and debarment actions is the same as DOI's fact-finding process for procurement suspension and debarment actions. This rule impacts only those persons suspended or proposed for debarment. A Federalism summary impact statement is not required.

G. Civil Justice Reform (E.O. 12988)

This rule complies with the requirements of E.O. 12988. Specifically, this rule:

1. Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

2. Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

H. Consultation With Indian Tribes (E.O. 13175)

Under the criteria in E.O. 13175, we have evaluated this rule and determined that it has no substantial direct effect on federally recognized Indian tribes. This rule is a technical rule revision that clarifies that the DOI fact-finding process for nonprocurement suspension and debarment actions is the same as DOI's fact-finding process for procurement suspension and debarment actions. This rule impacts only those persons suspended or proposed for debarment.

I. Paperwork Reduction Act

This rule does not contain information collection requirements, and a submission under the Paperwork Reduction Act (44 U.S.C. 3501, et seq.) is not required.

J. National Environmental Policy Act

This rule does not constitute a major Federal action significantly affecting the quality of the human environment under the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.). This rule is categorically excluded from the requirement to prepare a detailed statement, because it qualifies as a regulation of an administrative nature within the meaning of 43 CFR 46.210(i).

K. Effects on the Energy Supply (E.O. 13211)

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

L. Clarity of This Regulation

We are required by section 1(b)(12) of E.O. 12866 and section 3(b)(1)(B) of E.O. 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

1. Be logically organized;

2. Use the active voice to address readers directly;

3. Use common, everyday words and clear language rather than jargon;

4. Be divided into short sections and sentences; and

5. Use lists and tables wherever possible.

If you feel that we have not met these requirements, send us comments by one of the methods listed in the FOR FURTHER INFORMATION CONTACT section. To better help us revise this rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, and the sections where you feel lists or tables would be useful.

List of Subjects in 2 CFR Part 1400

Administrative practice and procedure, Debarment, Grant programs, Government contracts, Reporting and recordkeeping requirements, Suspension.

For the reasons set out in the preamble, we are amending part 1400, chapter XIV of subtitle B, title 2 of the Code of Federal Regulations as set forth below:

PART 1400—NONPROCUREMENT SUSPENSION AND DEBARMENT 1. The authority citation for part 1400 is revised to read as follows: Authority:

Section 2455, Pub. L. 103-355, 108 Stat. 3327 (31 U.S.C. 6101 note); 5 U.S.C. 301; E.O. 12549 (3 CFR, 1986 Comp., p. 189); and E.O. 12689 (3 CFR, 1989 Comp., p. 235).

2. Revise § 1400.10 to read as follows:
§ 1400.10 What does this part do?

This part provides procedures for the Department of the Interior nonprocurement suspension and debarment actions.

3. Add subparts E, F, G, and H to read as follows: Subpart E—System for Award Management Exclusions Sec. 1400.526 Who at DOI places exclusions information into SAM? Subpart F—General Principles Relating to Suspension and Debarment Actions 1400.600 How does a DOI debarment or suspension action begin? 1400.635 May DOI settle a debarment or suspension action? Subpart G—Suspension 1400.751 What does the Suspending and Debarring Official consider in making a decision on whether to continue a suspension following notice issuance? 1400.752 When does a contested suspension action include a fact-finding proceeding? 1400.753 How is the fact-finding proceeding conducted? 1400.756 May a respondent request administrative review of the Suspending and Debarring Official's decision? Subpart H—Debarment 1400.861 What procedures does the Suspending and Debarring Official follow to make a decision on whether to impose debarment following notice issuance? 1400.862 When does a contested debarment action include a fact-finding proceeding? 1400.863 How is the fact-finding proceeding conducted? 1400.876 May a respondent request administrative reconsideration of a decision? 1400.881 May a respondent seek award eligibility reinstatement at any time before the end of the period of debarment? Subpart E—System for Award Management Exclusions
§ 1400.526 Who at DOI Places Exclusions Information into SAM?

The Office of Acquisition and Property Management (PAM) Debarment Program personnel enter information about persons suspended or debarred by DOI into the GSA Web-based System for Award Management (SAM) within 3 working days of the effective date of the action.

Subpart F—General Principles Relating to Suspension and Debarment Actions
§ 1400.600 How does a DOI suspension or debarment action begin?

(a) Federal officials, DOI award officials, employees, or other sources will forward information indicating the potential existence of a cause for suspension or debarment, as listed in 2 CFR 180.700 and 180.800, to:

(1) The DOI Office of Inspector General Administrative Remedies Division (OIG ARD); or

(2) The Suspending and Debarring Official.

(b) If forwarded to the OIG ARD, that office will conduct a review to determine if a recommendation for administrative action is warranted. If warranted, the OIG ARD will prepare and submit to the Suspending and Debarring Official an Action Referral Memorandum (ARM) with supporting documentation for the administrative record.

(c) OIG ARD will also identify potential matters for case development and conduct a review to determine if a recommendation for administrative action is warranted. If warranted, the OIG ARD will prepare and submit to the Suspending and Debarring Official an ARM with supporting documentation for the administrative record.

(d) The Suspending and Debarring Official will review the ARM to determine the adequacy of evidence to support and initiate:

(1) A suspension by taking the actions listed in 2 CFR 180.615 and 180.715; or

(2) A debarment by taking the actions listed in 2 CFR 180.615 and 2 CFR 180.805; and

(3) Notification of the respondent on how the respondent may contest the action.

§ 1400.635 May DOI settle a debarment or suspension action?

Under 2 CFR 180.635, the Suspending and Debarring Official may resolve a suspension or debarment action through an administrative agreement if it is in the best interest of the Government at any stage of proceedings, where the respondent agrees to appropriate terms. The specific effect of administrative agreements that incorporate terms regarding award eligibility will vary with the terms of the agreements. Where the Suspending and Debarring Official enters into an administrative agreement, PAM will notify the award officials by:

(a) Entering any appropriate information regarding an exclusion or the termination of an exclusion into the SAM; and

(b) Entering the agreement into the Federal Awardee Performance Integrity Information System (FAPIIS) or its successor system.

Subpart G—Suspension
§ 1400.751 What does the Suspending and Debarring Official consider in making a decision on whether to continue a suspension following notice issuance?

(a) In the event a respondent does not contest the suspension in writing within the time period provided at 2 CFR 180.715 through 180.725, the suspension will remain in place without further proceedings.

(b) Where a suspension is contested, the Suspending and Debarring Official follows the provisions at 2 CFR 180.730 through 180.755 in reaching a decision on whether to continue or terminate the suspension.

(c) The contested suspension proceeding will include an oral Presentation of Matters in Opposition (PMIO), where one is requested by a respondent. The PMIO is conducted in an informal business meeting format and electronically recorded for inclusion in the administrative record.

(d) Where fact-finding occurs as part of the suspension proceeding, after receiving the findings of fact and the hearing record from the fact-finding official, the Suspending and Debarring Official completes suspension proceedings, including a PMIO if one has been requested and did not occur before the fact-finding proceeding. Following completion of suspension proceedings, the Suspending and Debarring Official issues a written decision under the provisions of 2 CFR 180.750 and 180.755.

§ 1400.752 When does a contested suspension action include a fact-finding proceeding?

(a) Fact-finding to resolve genuine disputes over facts material to the suspension occurs where the conditions listed in 2 CFR 180.735(b) are satisfied.

(b) The fact-finding official for DOI suspension proceedings is the DOI Debarment Program Director, unless the Suspending and Debarring Official designates another DOI official to serve as the fact-finding official.

§ 1400.753 How is the fact-finding proceeding conducted?

(a) The fact-finding proceeding is conducted in accordance with PAM's suspension and debarment program fact-finding procedures, a copy of which is provided to the respondent.

(b) The fact-finding proceeding is undertaken in accordance with 2 CFR 180.745.

(1) The reporters' fees and other direct costs associated with the fact-finding proceeding are borne by the bureau(s) or office(s) initiating the suspension action, except in the case of actions initiated by the OIG ARD.

(2) For actions initiated by the OIG ARD, the costs are borne by bureau(s) and/or office(s) out of which the matter arose.

(3) A transcribed record transcript of the fact-finding proceedings is available to the respondent as provided at 2 CFR 180.745(b).

(c) The fact-finding official provides findings of fact and the hearing record to the Suspending and Debarring Official. The fact-finding official files the original copy of the transcribed record of the fact-finding proceedings transcript with the administrative record.

§ 1400.756 May a respondent request administrative review of the Suspending and Debarring Official's decision?

A respondent may seek administrative reconsideration of the Suspending and Debarring Official's decision by following the procedures in this section.

(a) Within 30 days of receiving the decision, the respondent may ask the Suspending and Debarring Official to reconsider the decision for clear and material errors of fact or law that would change the outcome of the matter. The respondent bears the burden of demonstrating the existence of the asserted clear and material errors of fact or law.

(b) A respondent's request for reconsideration must be submitted in writing to the Suspending and Debarring Official and include:

(1) The specific findings of fact and conclusions of law believed to be in error; and

(2) The reasons or legal basis for the respondent's position.

(c) The Suspending and Debarring Official may, in the exercise of discretion, stay the suspension pending reconsideration. The Suspending and Debarring Official will:

(1) Notify the respondent in writing of the decision on whether to reconsider the decision; and

(2) If reconsideration occurs, notify the respondent in writing of the results of the reconsideration.

Subpart H—Debarment
§ 1400.861 What procedures does the Suspending and Debarring Official follow to make a decision on whether to impose debarment following notice issuance?

(a) In the event a respondent does not contest the proposed debarment in writing within the time period provided at 2 CFR 180.815 through 180.825, the debarment as proposed in the notice will be imposed without further proceedings.

(b) Where a proposed debarment is contested, the Suspending and Debarring Official will follow the provisions at 2 CFR 180.830 through 180.870 in reaching a decision on whether to impose a period of debarment.

(c) The administrative record will include an oral PMIO, in those actions where the respondent requests one. The PMIO is conducted in an informal business meeting format and electronically recorded for the record.

(d) Where fact-finding occurs as part of the proposed debarment proceeding, after receiving the findings of fact and the hearing record from the fact-finding official, the Suspending and Debarring Official completes debarment proceedings, including a PMIO if one has been requested and did not occur before the fact-finding proceeding. Following completion of proposed debarment proceedings, the Suspending and Debarring Official issues a written decision under the provisions of 2 CFR 180.870.

§ 1400.862 When does a contested proposed debarment action include a fact-finding proceeding?

Fact-finding to resolve genuine disputes over facts material to the proposed debarment occurs where the conditions at 2 CFR 180.830(b) are satisfied.

§ 1400.863 How is the fact-finding proceeding conducted?

(a) The fact-finding proceeding is conducted in accordance with PAM's suspension and debarment program fact-finding procedures, a copy of which is provided to the respondent.

(b) The fact-finding official for DOI debarment proceedings is the DOI Debarment Program Director, unless the Suspending and Debarring Official designates another DOI official to serve as the fact-finding official.

(c) The fact-finding proceeding is undertaken in accordance with 2 CFR 180.840.

(1) The reporters' fees and other direct costs associated with the fact-finding proceeding are borne by the bureau(s) or office(s) initiating the debarment action, except in the case of actions initiated by the OIG.

(2) For actions initiated by the OIG, the costs are borne by the bureau(s) and/or office(s) out of which the matter arose.

(3) A transcribed record of the fact-finding proceedings is available to the respondent as provided at 2 CFR 180.840(b).

(d) The fact-finding official provides written findings of fact and the hearing record to the Suspending and Debarring Official. The fact-finding official files the original copy of the transcribed record of the fact-finding proceedings with the administrative record.

§ 1400.876 May a respondent request administrative reconsideration of a decision?

A respondent may request the Suspending and Debarring Official to review a decision under this part as follows:

(a) Within 30 days of receiving the decision, the respondent may ask the Suspending and Debarring Official to reconsider the decision based on clear and material error(s) of fact or conclusion(s) of law that would change the outcome of the matter. The respondent bears the burden of demonstrating the existence of the asserted clear and material error(s) of fact or conclusion(s) of law.

(b) The respondent's request for reconsideration must be submitted in writing to the Suspending and Debarring Official and include:

(1) The specific finding(s) of fact and conclusion(s) of law the respondent believes are in error; and

(2) The reasons or legal bases for the respondent's position.

(c) The Suspending and Debarring Official may in the exercise of discretion stay the debarment pending reconsideration. The Suspending and Debarring Official will review the request for reconsideration and:

(1) Notify the respondent in writing whether the Suspending and Debarring Official will reconsider the decision; and

(2) If reconsideration occurs, notify the respondent in writing of the results of the reconsideration.

§ 1400.881 May a respondent seek award eligibility reinstatement at any time before the end of the period of debarment?

In addition to a petition for reconsideration based on a clear error of material fact or law, a respondent may, at any time following imposition of debarment, request the Suspending and Debarring Official to reduce or terminate the period of debarment based upon the factors under the provisions of 2 CFR 180.880.

Subpart I—Definitions 4. Add §§ 1400.1011 through 1400.1014 to subpart I to read as follows:
§ 1400.1011 The DOI Debarment Program Director.

The Debarment Program Director is the individual in PAM who advises the Suspending and Debarring Official on DOI suspension and debarment practices and procedures, manages the suspension and debarment process, and acts as the DOI suspension and debarment program fact-finding official.

§ 1400.1012 The OIG Administrative Remedies Division (ARD).

The OIG ARD prepares and forwards suspension and/or debarment action referral memoranda to the Suspending and Debarring Official and may provide additional assistance, in the course of action proceedings.

§ 1400.1013 The administrative record.

The administrative record for DOI suspension and debarment actions consists of the initiating action referral memorandum and its attached documents; the action notice; contested action scheduling correspondence; written information, arguments and supporting documents submitted by a respondent in opposition to the action notice; written information, arguments and supporting documents submitted by the OIG ARD in response to information provided by a respondent; the electronic recording of the PMIO, where a PMIO is held as part of the proceeding; where fact-finding is conducted, the transcribed record of the fact-finding proceedings, and findings of fact; and the final written determination by the Suspending and Debarring Official on the action; or, alternatively, the administrative agreement endorsed by the respondent and the Suspending and Debarring Official that resolves an action.

§ 1400.1014 Respondent.

Respondent means a person who is the subject of a DOI suspension or proposed debarment action.

Dated: September 16, 2016. Kristen J. Sarri, Principal Deputy Assistant Secretary—Policy, Management and Budget.
[FR Doc. 2016-23102 Filed 9-23-16; 8:45 am] BILLING CODE 4334-63-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-3992; Directorate Identifier 2015-NM-075-AD; Amendment 39-18653; AD 2016-19-04] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 787-8 airplanes. This AD was prompted by a report of uncommanded movement by a captain's seat during a landing rollout due to a failure in the seat horizontal actuator. This AD requires repetitive tests of the captain and first officer seat assemblies for proper operation, and corrective action if necessary. This AD also requires installation of new captain and first officer seat assemblies, which terminates the repetitive tests. We are issuing this AD to prevent a seat actuator clutch failure, which could result in a loss of seat locking and uncommanded motion of the captain's or first officer's seat; uncommanded seat movement could result in reduced controllability of the airplane.

DATES:

This AD is effective October 31, 2016.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of October 31, 2016.

ADDRESSES:

For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone: 206-544-5000, extension 1; fax: 206-766-5680; Internet: https://www.myboeingfleet.com. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-3992.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-3992; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Brandon Lucero, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6572; fax: 425-917-6590; email: [email protected]

SUPPLEMENTARY INFORMATION:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 787-8 airplanes. The NPRM published in the Federal Register on March 7, 2016 (81 FR 11687) (“the NPRM”). The NPRM was prompted by a report of uncommanded movement by a captain's seat during a landing rollout due to a failure in the seat horizontal actuator. The NPRM proposed to require repetitive tests of the captain and first officer seat assemblies for proper operation, and corrective action if necessary. The NPRM also proposed to require installation of new captain and first officer seat assemblies, which would terminate the repetitive tests. We are issuing this AD to prevent a seat actuator clutch failure, which could result in a loss of seat locking and uncommanded motion of the captain's or first officer's seat; uncommanded seat movement could result in reduced controllability of the airplane.

Comments

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

Request To Remove Service Bulletin Issue Number and Date

Boeing requested that we revise the NPRM to not specify the Service Bulletin issue number and date, or alternatively to include “or subsequent” when referencing Boeing Alert Service Bulletin B787-81205-SB250054-00, Issue 001, dated December 19, 2014.

Boeing commented that the seat supplier is currently working on a related nuisance issue of intermittent electrical operation of the seat-powered adjustment system. Boeing stated that the resolution to this issue may result in changes to the part numbers of the actuators and seat assemblies, and revision to the service bulletin issue number and date.

We do not agree with the commenter's request to remove the issue number and date of the service information. We cannot allow use of “later-approved revisions” in an AD when referring to the service document. Doing so violates Office of the Federal Register (OFR) regulations for approval of materials “incorporated by reference,” as specified in 1 CFR 51.1(f). If for any reason the issue and date of the service bulletin should change, the FAA may consider issuing an alternative method of compliance (AMOC) to allow use of a later revision. We have not changed this AD in this regard.

Request To Remove the Replacement Seat Part Numbers

Boeing requested that we remove the replacement seat part numbers to be installed as terminating action from this AD, and instead specify that seats be replaced with part numbers “as specified in Boeing Alert Service Bulletin B787-81205-SB250054-00.”

Boeing commented that the seat supplier is currently working on a related nuisance issue of intermittent electrical operation of the seat-powered adjustment system. The resolution to this issue may result in change to the part numbers of the actuators and seat assemblies.

We partially agree with the commenter's request. We have changed paragraph (h) of this AD to remove the part numbers of the actuators and seat assemblies from this AD and to include the part numbers specified in Boeing Alert Service Bulletin B787-81205-SB250054-00. However, we have included the revision level and date of the service information for the reasons noted in the previous comment response. The FAA may consider issuing an AMOC to allow use of a later revision of the service information.

Request To Allow Credit for Prior Accomplishment of Service Bulletins

United Airlines requested that the AD allow credit for prior accomplishment of Boeing and Ipeco service information.

We already provide credit in paragraph (f) of this AD for prior accomplishment of Boeing Alert Service Bulletin B787-81205-SB250054-00, Issue 001, dated December 19, 2014, if accomplished before the effective date of this AD. In addition, credit is not necessary for using the Ipeco service information referenced in Boeing Alert Service Bulletin B787-81205-SB250054-00, Issue 001, dated December 19, 2014, because this AD does not specifically require using Ipeco service information. No change to this AD is necessary.

Conclusion

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

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

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

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

Related Service Information Under 1 CFR Part 51

We reviewed Boeing Alert Service Bulletin B787-81205-SB250054-00, Issue 001, dated December 19, 2014. This service information provides procedures for installation of new captain and first officer seat assemblies, a test of the captain and first officer seat assemblies, and corrective action if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Costs of Compliance

We estimate that this AD affects 18 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S.
  • operators
  • Operational test 2 work-hours × $85 per hour = $170 per test cycle $0 $170 per test cycle $3,060 per test cycle. Seat assembly installation 3 work-hours × $85 per hour = $255 to replace two seats $15,141 per seat × 2 seats = $30,282 $30,537 to replace two seats $549,666.

    We estimate the following costs to do any necessary corrective actions that would be required based on the results of the operational tests. We have no way of determining the number of aircraft that might need these actions:

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Replacement of captain seat vertical actuator 2 work-hours × $85 per hour = $170 $7,500 $7,670 Replacement of captain seat horizontal actuator 2 work-hours × $85 per hour = $170 7,500 7,670 Replacement of first officer seat vertical actuator 2 work-hours × $85 per hour = $170 7,500 7,670 Replacement of first officer seat horizontal actuator 2 work-hours × $85 per hour = $170 7,500 7,670
    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-19-04 The Boeing Company: Amendment 39-18653; Docket No. FAA-2016-3992; Directorate Identifier 2015-NM-075-AD. (a) Effective Date

    This AD is effective October 31, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 787-8 airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin B787-81205-SB250054-00, Issue 001, dated December 19, 2014.

    (d) Subject

    Air Transport Association (ATA) of America Code 25, Equipment/furnishings.

    (e) Unsafe Condition

    This AD was prompted by a report of uncommanded movement by a captain's seat during a landing rollout due to a failure in the seat horizontal actuator. We are issuing this AD to prevent a seat actuator clutch failure, which could result in a loss of seat locking and uncommanded motion of the captain's or first officer's seat; uncommanded seat motion could result in reduced controllability of the airplane.

    (f) Compliance

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

    (g) Repetitive Tests of Captain and First Officer Seat Assembly Operation

    Within 1,000 flight hours after the effective date of this AD, test the operation of the captain and first officer seat assemblies and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB250054-00, Issue 001, dated December 19, 2014. Do all applicable corrective actions before further flight. Repeat the operational test thereafter at intervals not to exceed 1,000 flight hours until the installation required by paragraph (h) of this AD is done.

    (h) New Seat Installation

    Within 72 months after the effective date of this AD, do the actions specified in paragraphs (h)(1) and (h)(2) of this AD. Installing the seat specified in paragraph (h)(1) or (h)(2) of this AD, as applicable, is terminating action for the repetitive operational tests required by paragraph (g) of this AD for that seat only.

    (1) Install a new captain seat assembly, in accordance with paragraph 2.F., “Part 3: Terminating Action: Captain Seat Assembly Replacement,” of the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB250054-00, Issue 001, dated December 19, 2014.

    (2) Install a new first officer seat assembly, in accordance with paragraph 2.I., “Part 6: Terminating Action: First Officer Seat Assembly Replacement,” of the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB250054-00, Issue 001, dated December 19, 2014.

    (i) Alternative Methods of Compliance (AMOCs)

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

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

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

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

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

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

    (j) Related Information

    For more information about this AD, contact Brandon Lucero, Aerospace Engineer, Cabin Safety and Environmental Systems Branch, ANM-150S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6572; fax: 425-917-6590; email: [email protected]

    (k) Material Incorporated by Reference

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

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

    (i) Boeing Alert Service Bulletin B787-81205-SB250054-00, Issue 001, dated December 19, 2014.

    (ii) Reserved.

    (3) For The Boeing Company service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone: 206-544-5000, extension 1; fax: 206-766-5680; Internet: https://www.myboeingfleet.com.

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

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

    Issued in Renton, Washington, on September 6, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-22187 Filed 9-23-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-5039; Directorate Identifier 2013-NM-148-AD; Amendment 39-18659; AD 2016-19-10] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We are superseding Airworthiness Directive (AD) 2000-10-18 for certain Airbus Model A300 series airplanes; Model A300 B4-600, B4-600R, F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes); and Model A310 series airplanes. AD 2000-10-18 required repetitive inspections to detect cracks in the lower spar of the engine pylons between ribs 6 and 7, and repair if necessary. This new AD reduces the compliance times for the initial inspection and the repetitive intervals. This AD was prompted by the determination that the compliance times for the initial inspection and the repetitive intervals must be reduced to allow timely detection of cracks in the engine pylon's lower spar between ribs 6 and 7. We are issuing this AD to detect and correct fatigue cracking, which could result in reduced structural integrity of the engine pylon's lower spar, and possible separation of the engine from the airplane.

    DATES:

    This AD is effective October 31, 2016.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of October 31, 2016.

    ADDRESSES:

    For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; Internet http://www.airbus.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5039.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5039; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-2125; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2000-10-18, Amendment 39-11742 (65 FR 34055, May 26, 2000) (“AD 2000-10-18”). AD 2000-10-18 applied to certain Airbus Model A300 series airplanes; Model A300 B4-600, B4-600R, F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes); and Model A310 series airplanes. The NPRM published in the Federal Register on April 5, 2016 (81 FR 19505) (“the NPRM”). The NPRM was prompted by a determination that the compliance times for the initial inspection and the repetitive intervals must be reduced to allow timely detection of cracks in the engine pylon's lower spar between ribs 6 and 7. The NPRM proposed to continue to require repetitive inspections to detect cracks in the lower spar of the engine pylons between ribs 6 and 7, and repair if necessary. The NPRM also proposed to reduce the compliance times for the initial inspection and the repetitive intervals. We are issuing this AD to detect and correct fatigue cracking, which could result in reduced structural integrity of the engine pylon's lower spar, and possible separation of the engine from the airplane.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2013-0167, dated July 26, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition. The MCAI states:

    Cracks were found between ribs 6 and 7 in the lower spar of engine pylons on A310, A300 and A300-600 aeroplanes. To prevent crack initiation, a first inspection programme of this area was rendered mandatory by DGAC [Direction Générale de l'Aviation Civile] France AD 93-228-154 (later revised, currently at Revision 3) [which corresponds to certain actions in FAA AD 2000-10-18] for A300 and A300-600 aeroplanes.

    At a later date and due to new findings, a specific inspection programme for A310 aeroplanes was rendered mandatory by DGAC France AD 1999-239-287(B) [which corresponds to certain other actions in FAA AD 2000-10-18]. That [French] AD was later superseded by EASA AD 2008-0001, which introduced new thresholds and intervals in the frame of the A310 extended service goal (ESG) exercise.

    Since DGAC France AD 1993-228-154(B)R3 and EASA AD 2008-0001 were issued, a fleet survey and updated Fatigue and Damage Tolerance analyses have been performed in order to substantiate the second ESG for A300-600, called ESG2 exercise. The results of these analyses have shown that the inspection threshold and interval must be reduced to allow timely detection of cracks in the engine pylon lower spar between ribs 6 and 7.

    For the reasons described above, this new [EASA] AD retains the requirements of DGAC France AD 1993-228-154(B)R3 and EASA AD 2008-0001, which are superseded, and requires accomplishment of the [eddy current or liquid penetrant] inspections [for cracking] and, depending on findings, [related investigative and] corrective actions [repairs], within the new thresholds and intervals specified in Airbus Service Bulletin (SB) A300-54-0073 Revision 03 [dated October 11, 2012] or SB A310-54-2017 Revision 06 [dated October 3, 2012] or SB A300-54-6014 Revision 07 [dated September 5, 2012].

    Related investigative actions include eddy current or liquid penetrant inspections for cracking of areas with removed protection. The unsafe condition is cracking in the lower spar of the engine pylons between ribs 6 and 7, which could result in reduced structural integrity of the engine pylon's lower spar, and possible separation of the engine from the airplane. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating it in Docket No. FAA-2016-5039.

    Comments

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

    Request To Revise Applicability

    United Parcel Service (UPS) requested that we remove Model A300 F4-622R airplanes from the proposed applicability. UPS stated that the NPRM would apply to all Model A300 airplanes except those that have Airbus Modification 10599 incorporated in production. UPS explained that Airbus Modification 10559 was embodied on airplane manufacturer serial number (MSN) 723 and all subsequent airplane serial numbers; and that the first Model A300 F4-622R airplane with this modification embodied was MSN 805.

    We infer that UPS made a typographical error in citing the Airbus Modification number and intended to reference Airbus Modification 10149. We agree with the commenter's request to remove Model A300 F4-622R airplanes from the applicability. Airbus has verified that all Model A300 F4-622R airplanes are post-Airbus Modification 10149 and that operators do not need to accomplish the inspections specified in Airbus Service Bulletin A300-54-6014, Revision 07, dated September 5, 2012, on those airplanes. As specified in paragraph (c) of this AD, this AD does not affect airplanes on which Airbus Modification 10149 has been incorporated in production. We have removed Model A300 F4-622R airplanes from paragraph (c)(4) of this AD. This change has been coordinated with EASA.

    Requests To Revise Paragraphs (g), (h), and (i) of the Proposed AD

    UPS requested that we revise paragraphs (g), (h), and (i) of the proposed AD, which identify inspections, corrective actions, and exceptions for both pre-repair and post-repair modification configurations. UPS stated that these paragraphs contain information in long, complex sentences with cross references to other paragraphs in the proposed AD. UPS explained that there is potential for confusion of the ruling requirements and opportunities for compliance errors. UPS provided suggestions for revising certain paragraphs of the proposed AD.

    We do not agree with the commenter's request. We recognize that the actions specified in the service information and this AD are complex. However, this AD uses standard terminology that is legally enforceable. UPS's suggested revisions included doing all repairs using a method approved by the FAA, EASA, or Airbus's EASA Design Organization Approval. This suggestion would require operators to obtain a method of compliance, even though the service information does provide instructions for doing certain repairs. Also, UPS suggested we add regulatory material in a note, which is not legally enforceable. We have not changed this AD in this regard.

    Request To Define Average Flight Time (AFT) Calculations

    UPS requested that we include a paragraph to define how AFT is calculated. UPS explained that paragraph (g) of the proposed AD has repetitive inspection requirements that use an interval defined in the service information that is dependent on airplane AFT methodology, but that the NPRM does not define parameters for how and when the AFT is determined. UPS submitted proposed language for calculating AFTs.

    In regards to the AFT definition, we have determined that, for the reasons stated by the commenter, this AD should define AFT calculations. We have added paragraph (j) to this AD accordingly and redesignated subsequent paragraphs.

    Request To Approve Alternative Methods of Compliance (AMOCs)

    UPS requested that we revise paragraph (k) of the proposed AD to specify that AMOCs approved previously for AD 2000-10-18 are approved as AMOCs for the corresponding provisions of this AD.

    We agree with the commenter's request. We have revised paragraph (l) of this AD (referred to as paragraph (k) in the proposed AD) to specify that AMOCs approved previously for AD 2000-10-18 are approved as AMOCs for the corresponding provisions of this AD.

    Conclusion

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

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

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

    Related Service Information Under 1 CFR Part 51

    Airbus has issued the following service bulletins.

    • Airbus Service Bulletin A300-54-0073, Revision 03, dated October 11, 2012 (for Model A300 series airplanes).

    • Airbus Service Bulletin A300-54-6014, Revision 07, dated September 5, 2012 (for Model A300-600 series airplanes).

    • Airbus Service Bulletin A310-54-2017, Revision 06, dated October 3, 2012 (for Model A310 series airplanes).

    This service information describes procedures for inspecting for cracking of the engine pylon's lower spar between ribs 6 and 7, and related investigative actions if cracking is found. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 156 airplanes of U.S. registry.

    We also estimate that it would take about 6 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $79,560, or $510 per product.

    We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD. We have no way of determining the number of aircraft that might need these actions.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2000-10-18, Amendment 39-11742 (65 FR 34055, May 26, 2000), and adding the following new AD: 2016-19-10 Airbus: Amendment 39-18659; Docket No. FAA-2016-5039; Directorate Identifier 2013-NM-148-AD. (a) Effective Date

    This AD is effective October 31, 2016.

    (b) Affected ADs

    This AD replaces AD 2000-10-18, Amendment 39-11742 (65 FR 34055, May 26, 2000) (“AD 2000-10-18”).

    (c) Applicability

    This AD applies to the Airbus airplanes identified in paragraphs (c)(1) through (c)(6) of this AD, certificated in any category, except airplanes on which Airbus Modification 10149 has been incorporated in production.

    (1) Airbus Model A300 B2-1A, B2-1C, B2K-3C, B2-203, B4-2C, B4-103, and B4-203 airplanes.

    (2) Airbus Model A300 B4-601, B4-603, B4-620, and B4-622 airplanes.

    (3) Airbus Model A300 B4-605R and B4-622R airplanes.

    (4) Airbus Model A300 F4-605R airplanes.

    (5) Airbus Model A300 C4-605R Variant F airplanes.

    (6) Airbus Model A310-203, -204, -221, -222, -304, -322, -324, and -325 airplanes.

    (d) Subject

    Air Transport Association (ATA) of America Code 54, Nacelles/pylons.

    (e) Reason

    This AD was prompted by the determination that the compliance times for the initial inspection and the repetitive intervals must be reduced to allow timely detection of cracks in the engine pylon's lower spar between ribs 6 and 7. We are issuing this AD to detect and correct fatigue cracking, which could result in reduced structural integrity of the engine pylon's lower spar, and possible separation of the engine from the airplane.

    (f) Compliance

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

    (g) Inspections and Corrective Actions

    Except as provided by paragraphs (i)(1) and (i)(2) of this AD, at the applicable time specified in paragraph 1.E., “Compliance,” of the applicable Airbus service bulletin specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD: Do an eddy current or liquid penetrant inspection for cracking of the engine pylon's lower spar between ribs 6 and 7; and do all applicable related investigative and corrective actions; in accordance with the Accomplishment Instructions of the applicable Airbus service bulletin specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD, except as required by paragraph (i)(3) of this AD. Do all applicable related investigative and corrective actions before further flight. Repeat the inspection of the engine pylon's lower spar between ribs 6 and 7 thereafter at the applicable time and intervals specified in paragraph 1.E., “Compliance,” of the applicable Airbus service bulletin specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD until a repair or modification specified in the Accomplishment Instructions of the applicable Airbus service bulletin identified in paragraph (g)(1), (g)(2), or (g)(3) of this AD is done.

    (1) Airbus Service Bulletin A300-54-0073, Revision 03, dated October 11, 2012 (for Model A300 series airplanes).

    Note 1 to paragraph (g)(1) of this AD:

    Airbus Service Bulletin A300-54-0080, Revision 02, dated July 9, 2002, is an additional source of guidance for accomplishing the modification specified in Airbus Service Bulletin A300-54-0073, Revision 03, dated October 11, 2012.

    (2) Airbus Service Bulletin A300-54-6014, Revision 07, dated September 5, 2012 (for Model A300-600 series airplanes).

    Note 2 to paragraph (g)(2) of this AD:

    Airbus Service Bulletin A300-54-6020, Revision 02, dated July 9, 2002, is an additional source of guidance for accomplishing the modification specified in Airbus Service Bulletin A300-54-6014, Revision 07, dated September 5, 2012.

    (3) Airbus Service Bulletin A310-54-2017, Revision 06, dated October 3, 2012 (for Model A310 series airplanes).

    Note 3 to paragraph (g)(3) of this AD:

    Airbus Service Bulletin A310-54-2023, Revision 03, dated July 9, 2002, is an additional source of guidance for accomplishing the modification specified in Airbus Service Bulletin A310-54-2017, Revision 06, dated October 3, 2012.

    (h) Post-Repair/Modification and Corrective Actions

    For airplanes on which any repair or modification specified in the Accomplishment Instructions of the applicable Airbus service bulletin identified in paragraph (g)(1), (g)(2), or (g)(3) of this AD is done: Except as provided by paragraphs (i)(1) and (i)(2) of this AD, at the applicable time specified in paragraph 1.E., “Compliance,” of the applicable Airbus service bulletin specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD: Do an eddy current or liquid penetrant inspection for cracking of the engine pylon's lower spar between ribs 6 and 7; and do all applicable related investigative and corrective actions; in accordance with the Accomplishment Instructions of the applicable Airbus service bulletin specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD, except as required by paragraph (i)(3) of this AD. Do all applicable related investigative and corrective actions before further flight. Repeat the inspection of the engine pylon's lower spar between ribs 6 and 7 thereafter at the applicable time and intervals specified in paragraph 1.E., “Compliance,” of the applicable Airbus service bulletin specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD.

    (i) Exceptions to Service Information

    (1) Where a “Threshold” is specified in paragraph 1.E., “Compliance,” of the service information specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD, the “FC” and “FH” compliance times are total flight cycle and total flight hour compliance times, except that if a repair or service bulletin identified in paragraph 1.E., “Compliance,” of the service bulletins specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD has been done, the “FC” and “FH” compliance times are flight cycle and flight hour compliance times since the identified repair or service bulletin was done.

    (2) Except as provided by paragraphs (i)(2)(i) and (i)(2)(ii) of this AD: For the “Grace period” specified in paragraph 1.E., “Compliance,” of the service information specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD, operators must comply with the actions specified in paragraphs (g) and (h) of this AD, as applicable, at the later of the applicable times in the “Threshold” and “Grace Period” times specified in paragraph 1.E., “Compliance,” of the applicable service information, except the language “for aircraft that have already exceeded or are close to exceed[ing] the threshold or scheduled interval” does not apply.

    (i) Where Airbus Service Bulletin A300-54-0073, Revision 03, dated October 11, 2012; and Airbus Service Bulletin A310-54-2017, Revision 06, dated October 3, 2012; specify a compliance time “. . . after receipt of this Inspection Service Bulletin without exceeding the requirements of previous issue of this ISB,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (ii) Where Airbus Service Bulletin A300-54-6014, Revision 07, dated September 5, 2012, specifies a compliance time “. . . after receipt of this Inspection Service Bulletin without exceeding the requirements of previous issue of this SB,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (3) If any crack is found during any inspection required by this AD and the applicable Airbus service bulletin specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD specifies to contact Airbus: Before further flight, repair the crack using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA).

    (j) Calculating Average Flight Time (AFT)

    For the purpose of paragraphs (g) and (h) of this AD, the AFT must be established as specified in paragraphs (j)(1), (j)(2), and (j)(3) of this AD.

    (1) For the initial inspection, the average flight time is the total accumulated flight hours, counted from take-off to touch-down, divided by the total accumulated flight cycles at the effective date of this AD.

    (2) For the first repeated inspection interval, the average flight time is the total accumulated flight hours divided by the total accumulated flight cycles at the time of the inspection threshold.

    (3) For all inspection intervals onwards, the average flight time is the flight hours divided by the flight cycles accumulated between the last two inspections.

    (k) Credit for Previous Actions

    This paragraph provides credit for actions required by paragraphs (g) and (h) of this AD, if those actions were performed before the effective date of this AD using an applicable service bulletin specified in paragraphs (k)(1) through (k)(10) of this AD.

    (1) Airbus Service Bulletin A300-54-0073, Revision 1, dated March 28, 1994 (for Model A300 series airplanes), which was incorporated by reference in AD 96-11-05, Amendment 39-9630 (61 FR 26091, May 24, 1996) (“AD 96-11-05”).

    (2) Airbus Service Bulletin A300-54-0073, Revision 02, dated July 9, 2002 (for Model A300 series airplanes), which is not incorporated by reference in this AD.

    (3) Airbus Service Bulletin A300-54-6014, Revision 1, dated March 28, 1994 (for Model A300-600 series airplanes), which was incorporated by reference in AD 96-11-05.

    (4) Airbus Service Bulletin A300-54-6014, Revision 03, dated June 4, 1998 (for Model A300-600 series airplanes), which is not incorporated by reference in this AD.

    (5) Airbus Service Bulletin A300-54-6014, Revision 04, dated March 9, 2002 (for Model A300-600 series airplanes), which is not incorporated by reference in this AD.

    (6) Airbus Service Bulletin A300-54-6014, Revision 05, dated September 1, 2011 (for Model A300-600 series airplanes), which is not incorporated by reference in this AD.

    (7) Airbus Service Bulletin A300-54-6014, Revision 06, dated May 24, 2012 (for Model A300-600 series airplanes), which is not incorporated by reference in this AD.

    (8) Airbus Service Bulletin A310-54-2017, Revision 03, dated June 11, 1999 (for Model A310 series airplanes), which was incorporated by reference in AD 2000-10-18.

    (9) Airbus Service Bulletin A310-54-2017, Revision 04, dated July 9, 2002 (for Model A310 series airplanes), which is not incorporated by reference in this AD.

    (10) Airbus Service Bulletin A310-54-2017, Revision 05, dated November 16, 2007 (for Model A310 series airplanes), which is not incorporated by reference in this AD.

    (l) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Dan Rodina, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-2125; fax 425-227-1149. Information may be emailed to: [email protected]

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

    (ii) AMOCs approved previously for AD 2000-10-18 are approved as AMOCs for the corresponding provisions of this AD.

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

    (m) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2013-0167, dated July 26, 2013, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5039.

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

    (n) Material Incorporated by Reference

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

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

    (i) Airbus Service Bulletin A300-54-0073, Revision 03, dated October 11, 2012.

    (ii) Airbus Service Bulletin A300-54-6014, Revision 07, dated September 5, 2012.

    (iii) Airbus Service Bulletin A310-54-2017, Revision 06, dated October 3, 2012.

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

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

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

    Issued in Renton, Washington, on September 12, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-22460 Filed 9-23-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2011-1068; Directorate Identifier 2010-NM-189-AD; Amendment 39-18647; AD 2016-18-16] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. This AD was prompted by fuel system reviews conducted by the manufacturer. This AD requires installing an automatic shutoff system for the center and auxiliary tank fuel boost pumps, as applicable; installing a placard in the airplane flight deck if necessary; replacing the P5-2 fuel system module assembly; installing the “uncommanded ON” (UCO) protection system for the fuel boost pumps; revising the airplane flight manual (AFM) to advise the flight crew of certain operating restrictions for airplanes equipped with an automatic shutoff system; and revising the maintenance program by incorporating new airworthiness limitations for fuel tank systems to satisfy Special Federal Aviation Regulation No. 88 requirements. We are issuing this AD to prevent operation of the center and auxiliary tank fuel boost pumps with continuous low pressure, which could lead to friction sparks or overheating in the fuel pump inlet that could create a potential ignition source inside the center and auxiliary fuel tanks. These conditions, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.

    DATES:

    This AD is effective October 31, 2016.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of October 31, 2016.

    ADDRESSES:

    For Boeing service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone: 206-544-5000, extension 1; fax: 206-766-5680; Internet https://www.myboeingfleet.com. For BAE Systems service information identified in this final rule, contact BAE Systems, Attention: Commercial Product Support, 600 Main Street, Room S18C, Johnson City, NY 13790-1806; phone: 607-770-3084; fax: 607-770-3015; email: [email protected]; Internet: http://www.baesystems-ps.com/customersupport. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2011-1068.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2011-1068; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Serj Harutunian, Aerospace Engineer, Propulsion Branch, ANM-140L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5254; fax: 562-627-5210; email: [email protected]

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. The SNPRM published in the Federal Register on March 28, 2016 (81 FR 17098) (“the SNPRM”). We preceded the SNPRM with a notice of proposed rulemaking (NPRM) that published in the Federal Register on October 12, 2011 (76 FR 63229) (“the NPRM”). The NPRM proposed to require installing an automatic shutoff system for the center and auxiliary tank fuel boost pumps, as applicable; installing a placard in the airplane flight deck if necessary; replacing the P5-2 fuel system module assembly; installing the UCO protection system for the fuel boost pumps; revising the airplane flight manual to advise the flight crew of certain operating restrictions for airplanes equipped with an automatic shutoff system; and revising the maintenance program by incorporating new airworthiness limitations for fuel tank systems to satisfy Special Federal Aviation Regulation No. 88 requirements. The NPRM was prompted by fuel system reviews conducted by the manufacturer. The SNPRM proposed to require updated or additional actions for certain airplane configurations. We are issuing this AD to prevent operation of the center and auxiliary tank fuel boost pumps with continuous low pressure, which could lead to friction sparks or overheating in the fuel pump inlet that could create a potential ignition source inside the center and auxiliary fuel tanks. These conditions, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.

    Comments

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

    Grouping Clarification for Airplanes With Removed Airstairs

    Phillippe Akot Azougo, ASLF, reported on a discussion with Boeing regarding the applicable airplane group for an airplane from which the airstair has been removed. Boeing indicated that if all of the support structure is not removed, the airplane is considered in the group with airstairs. Based on this comment, there is no need to change this final rule regarding this issue.

    Effect of Winglets on Accomplishment of the Proposed Actions

    Aviation Partners Boeing stated that the installation of winglets per Supplemental Type Certificate (STC) ST01219SE does not affect the accomplishment of the manufacturer's service instructions.

    We agree with the commenter that STC ST01219SE does not affect the accomplishment of the manufacturer's service instructions. Therefore, the installation of STC ST01219SE does not affect the ability to accomplish the actions required by this AD. We have not changed this AD in this regard.

    Conclusion

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

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

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

    We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD. Related Service Information Under 1 CFR Part 51

    We reviewed the following service information:

    The following describe procedures for replacing the P5-2 fuel system module assembly for Model 737-100, -200, -200C, -300, -400, and -500 airplanes.

    • Boeing Alert Service Bulletin 737-28A1210, dated August 2, 2010.

    • Boeing Service Bulletin 737-28A1210, Revision 1, dated May 13, 2011.

    • Boeing Service Bulletin 737-28A1210, Revision 2, dated October 25, 2012.

    The following describe procedures for installing an automatic shutoff system for the center and auxiliary fuel tank boost pumps for Model 737-300, -400, and -500 airplanes.

    • Boeing Alert Service Bulletin 737-28A1216, dated July 29, 2010.

    • Boeing Service Bulletin 737-28A1216, Revision 1, dated March 26, 2012.

    • Boeing Service Bulletin 737-28A1216, Revision 2, dated November 12, 2012.

    • Boeing Service Bulletin 737-28A1216, Revision 3, dated July 16, 2014.

    The following describe procedures for installing a UCO protection system for the center and auxiliary fuel boost pumps for Model 737-100, -200, -200C, -300, -400, and -500 airplanes.

    • Boeing Alert Service Bulletin 737-28A1227, dated August 2, 2010.

    • Boeing Alert Service Bulletin 737-28A1227, Revision 1, dated July 18, 2011.

    • Boeing Service Bulletin 737-28A1227, Revision 2, dated September 23, 2014.

    The following describe procedures for installing an automatic shutoff system for the center and auxiliary fuel tank boost pumps for Model 737-100, -200, and -200C airplanes.

    • Boeing Alert Service Bulletin 737-28A1228, dated August 2, 2010.

    • Boeing Alert Service Bulletin 737-28A1228, Revision 1, dated June 28, 2012.

    • Boeing 737-100/200/200C/300/400/500 Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), Document D6-38278-CMR, Revision June 2014, contains, among other requirements, AWLs 28-AWL-21, 28-AWL-22, 28-AWL-24, and 28-AWL-25 for Model 737-100, -200, and -200C airplanes; and AWLs 28-AWL-20, 28-AWL-21, 28-AWL-23, and 28-AWL-24; for Model 737-300, -400, and -500 airplanes. These AWLs provide airworthiness limitation instructions for an operational check of the installed automatic shutoff system.

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

    Costs of Compliance

    We estimate that this AD affects 499 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S.
  • operators
  • Install auto shutoff protection for Model 737-100, -200, -200C airplanes (82 airplanes) Between 92 and 155 work-hours × $85 per hours = Between $7,820 and $13,175 1 Between $10,792 and $15,548 1 Between $18,612 and $28,723 1 Between $1,526,184 and $2,355,286 1. Install auto shutoff protection for Model 737-300, -400, and -500 airplanes (417 airplanes) Between 92 and 152 work-hours × $85 per hours = Between $7,820 and $12,920 1 Between $9,869 and $16,236 1 Between $17,689 and $29,156 1 Between $7,376,313 and $12,158,052 1. Install P5-2 module (499 airplanes) 1 work-hour × $85 per hour = $85 $0 $85 $42,415. Install UCO protection (499 airplanes) Between 38 and 67 work-hours × $85 per hours = Between $3,230 and $5,695 1 Between $3,742 and $4,861 1 Between $6,972 and $10,556 1 Between $3,479,028 and $5,267,444 1. Revise airplane flight manual (499 airplanes) 1 work-hour × $85 per hour = $85 $0 $85 $42,415 Revise maintenance program (499 airplanes) 1 work-hour × $85 per hour = $85 $0 $85 $42,415 1 Depending on group.
    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-18-16 The Boeing Company: Amendment 39-18647; Docket No. FAA-2011-1068; Directorate Identifier 2010-NM-189-AD. (a) Effective Date

    This AD is effective October 31, 2016.

    (b) Affected ADs

    Certain requirements of this AD terminate certain requirements of AD 2001-08-24, Amendment 39-12201 (66 FR 20733, April 25, 2001) (“AD 2001-08-24”).

    (c) Applicability

    This AD affects all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes; certificated in any category.

    (d) Subject

    Air Transport Association (ATA) of America Code 28, Fuel.

    (e) Unsafe Condition

    This AD was prompted by fuel system reviews conducted by the manufacturer. We are issuing this AD to prevent operation of the center and auxiliary tank fuel boost pumps with continuous low pressure, which could lead to friction sparks or overheating in the fuel pump inlet that could create a potential ignition source inside the center and auxiliary fuel tanks. These conditions, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss of the airplane.

    (f) Compliance

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

    (g) Installation of Automatic Shutoff System for the Center and Auxiliary Tank Fuel Boost Pumps

    Within 36 months after the effective date of this AD, do the applicable actions specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD. If a placard has been previously installed on an airplane, in accordance with the requirements of paragraph (i) of this AD, the placard may be removed from the flight deck of only that airplane after the automatic shutoff system has been installed, as specified in paragraph (g)(1), (g)(2), or (g)(3) of this AD, as applicable.

    (1) For Model 737-100, -200, and -200C series airplanes in Groups 2 through 19, as identified in Boeing Alert Service Bulletin 737-28A1228, Revision 1, dated June 28, 2012: Install the automatic shutoff system for the center and auxiliary fuel tank boost pumps, as applicable, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-28A1228, Revision 1, dated June 28, 2012. For airplanes that do not have airstairs, accomplishment of the actions specified in Boeing Alert Service Bulletin 737-28A1228, dated August 2, 2010, is acceptable for compliance with the requirements of this paragraph, provided markers are installed on the J2802 Box for “POS 1” and “POS 2” within 90 days after the effective date of this AD, in accordance with Boeing Alert Service Bulletin 737-28A1228, Revision 1, dated June 28, 2012.

    (2) For Model 737-100, -200, and -200C series airplanes in Group 1, as identified in Boeing Alert Service Bulletin 737-28A1228, Revision 1, dated June 28, 2012: Install the automatic shutoff system for the center and auxiliary fuel tank boost pumps, as applicable, using a method approved in accordance with the procedures specified in paragraph (r) of this AD.

    (3) For Model 737-300, -400, and -500 series airplanes in Groups 1 through 31, as identified in Boeing Service Bulletin 737-28A1216, Revision 3, dated July 16, 2014: Install the automatic shutoff system for the center and auxiliary fuel tank boost pumps, as applicable, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 737-28A1216, Revision 3, dated July 16, 2014. For airplanes that do not have airstairs: Accomplishment of the actions specified in Boeing Alert Service Bulletin 737-28A1216, dated July 29, 2010, is acceptable for compliance with the requirements of this paragraph, provided markers are installed on the J2802 Box for “POS 1” and “POS 2” within 90 days after the effective date of this AD, in accordance with Boeing Alert Service Bulletin 737-28A1216, Revision 1, dated March 26, 2012; or Boeing Service Bulletin 737-28A1216, Revision 2, dated November 12, 2012.

    (h) Concurrent Installation of P5-2 Fuel System Module Assembly

    Before or concurrently with accomplishment of the actions required by paragraph (g) of this AD, do the actions specified in paragraph (h)(1) or (h)(2) of this AD, as applicable. Accomplishment of the actions specified in Boeing Alert Service Bulletin 737-28A1210, dated August 2, 2010; or Boeing Service Bulletin 737-28A1210, Revision 1, dated May 13, 2011; is acceptable for compliance with the requirements of paragraph (h)(1) of this AD, provided that for any original P5-2 fuel system module P/N 69-37335-129 installed that has been reworked as specified in BAE Systems Service Bulletin 69-37335-28-04, Revision 2, dated February 10, 2010, the (P/N) marking is etched/scribed or labeled as P/N 69-37335-2129, within 90 days after the effective date of this AD.

    (1) For airplanes in Group 2, as identified in Boeing Service Bulletin 737-28A1210, Revision 2, dated October 25, 2012: Replace the P5-2 fuel system module assembly with a modified or new P5-2 fuel system module assembly having a new part number, in accordance with Boeing Service Bulletin 737-28A1210, Revision 2, dated October 25, 2012.

    Note 1 to paragraph (h)(1) of this AD:

    Boeing Service Bulletin 737-28A1210, Revision 2, dated October 25, 2012, refers to BAE Systems Service Bulletin 69-37335-28-04 as an additional source of guidance for modifying and updating the existing P5-2 fuel system module assembly part numbers.

    (2) For airplanes in Group 1, as identified in Boeing Service Bulletin 737-28A1210, Revision 2, dated October 25, 2012: Replace the P5-2 fuel system module assembly, as applicable, using a method approved in accordance with the procedures specified in paragraph (r) of this AD.

    (i) Concurrent Installation of a Placard for Mixed Fleet Operation

    Concurrently with accomplishment of the actions required by paragraph (g) of this AD, install a placard adjacent to the pilot's primary flight display on all airplanes in the operator's fleet not equipped with an automatic shutoff system for the center and auxiliary tank fuel boost pumps, as applicable. The placard must include the statement in figure 1 to paragraph (i) of this AD. Optionally, the placard may include alternative text or be installed in a different location, or an additional placard may be installed, if approved by an appropriate FAA principal operations inspector. Installing an automatic shutoff system on an airplane, in accordance with the requirements of paragraph (g) of this AD, terminates the placard installation required by this paragraph for only that airplane.

    ER26SE16.000 (j) Airplane Flight Manual (AFM) Revisions for Airplanes Without Boeing Auxiliary Fuel Tanks

    For airplanes without Boeing auxiliary fuel tanks: Concurrently with accomplishment of the actions required by paragraph (g) of this AD, do the actions specified in paragraphs (j)(1) and (j)(2) of this AD.

    (1) Revise Section 1 of the Limitations section of the applicable Boeing 737 AFM to include the statement in figure 2 to paragraph (j)(1) of this AD. This may be done by inserting a copy of this AD into the AFM. When a statement identical to that in figure 2 to paragraph (j)(1) of this AD has been included in the general revisions of the applicable Boeing 737 AFM, the general revisions may be inserted into the AFM, and the copy of this AD may be removed from the AFM.

    ER26SE16.001 BILLING CODE 4910-13-P

    (2) Revise Section 3 of the Normal Procedures section of the applicable Boeing 737 AFM to include the text specified in figure 3 to paragraph (j)(2) of this AD. This may be done by inserting a copy of this AD into the AFM. Alternative statements that meet the intent of the following requirements may be used if approved by an appropriate FAA principal operations inspector.

    ER26SE16.002 BILLING CODE 4910-13-C (k) AFM Revisions for Airplanes With Boeing Auxiliary Fuel Tanks

    For airplanes with Boeing auxiliary fuel tanks: Concurrently with accomplishment of the actions required by paragraph (g) of this AD, do the actions specified in paragraphs (k)(1) and (k)(2) of this AD.

    (1) Revise Section 1 of the Limitations section of the applicable Boeing 737 AFM to include the text specified in figure 4 to paragraph (k)(1) of this AD. This may be done by inserting a copy of this AD into the AFM. When a statement identical to that in figure 4 to paragraph (k)(1) of this AD has been included in the general revisions of the applicable Boeing 737 AFM, the general revisions may be inserted into the AFM, and the copy of this AD may be removed from the AFM.

    ER26SE16.003 BILLING CODE 4910-13-P

    (2) Revise Section 3 of the Normal Procedures section of the applicable Boeing 737 AFM to include the text specified in figure 5 to paragraph (k)(2) of this AD. This may be done by inserting a copy of this AD into the AFM. Alternative statements that meet the intent of the following requirements may be used if approved by an appropriate FAA principal operations inspector.

    ER26SE16.004 BILLING CODE 4910-13-C (l) Airworthiness Limitations (AWLs) Revision for Automatic Shutoff System

    Concurrently with accomplishment of the actions required by paragraph (g) of this AD, or within 30 days after the effective date of this AD, whichever occurs later: Revise the maintenance program by incorporating the AWLs specified in paragraphs (l)(1), (l)(2), (l)(3), and (l)(4) of this AD, as applicable. The initial compliance time for the actions specified in the applicable AWLs is within 1 year after accomplishment of the installation required by paragraph (g) of this AD, or within 1 year after the effective date of this AD, whichever occurs later.

    (1) For Model 737-100, -200, and -200C series airplanes without Boeing auxiliary fuel tanks installed: Incorporate AWL No. 28-AWL-21 of Section C., Airworthiness Limitations—Systems, of Boeing 737-100/200/200C/300/400/500 Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), Document D6-38278-CMR, Revision June 2014.

    (2) For Model 737-100, -200, and -200C series airplanes with Boeing auxiliary fuel tanks installed: Incorporate AWL No. 28-AWL-21 and AWL No. 28-AWL-22 of Section C., Airworthiness Limitations—Systems,” of Boeing 737-100/200/200C/300/400/500 Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), Document D6-38278-CMR, Revision June 2014.

    (3) For Model 737-300, -400, and -500 series airplanes without Boeing auxiliary fuel tanks installed: Incorporate AWL No. 28-AWL-20 of Section C., Airworthiness Limitations—Systems, of Boeing 737-100/200/200C/300/400/500 Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), Document D6-38278-CMR, Revision June 2014.

    (4) For Model 737-300, -400, and -500 series airplanes with Boeing auxiliary fuel tanks installed: Incorporate AWL No. 28-AWL-20 and AWL No. 28-AWL-21 of Section C., Airworthiness Limitations—Systems, of Boeing 737-100/200/200C/300/400/500 Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), Document D6-38278-CMR, Revision June 2014.

    (m) Installation of Un-commanded ON (UCO) Protection System

    Within 60 months after the effective date of this AD, do the actions required by paragraph (m)(1) or (m)(2) of this AD, as applicable.

    (1) For airplanes in Groups 2 through 13, as identified in Boeing Service Bulletin 737-28A1227, Revision 2, dated September 23, 2014: Install the UCO protection system for the center and auxiliary tank fuel boost pumps, as applicable, in accordance with the Accomplishment Instructions of Boeing Service Bulletin 737-28A1227, Revision 2, dated September 23, 2014. For airplanes with enlarged J2802 box assembly relay cutouts to fit the body of relays R3334, R3336, R3338, or R3340, with BACS12HN08-10 screws for the installation of the relays as specified in Boeing Service Bulletin Information Notice 737-28A1227 IN 05: Accomplishment of the actions specified in Boeing Alert Service Bulletin 737-28A1227, dated August 2, 2010; or Revision 1, dated July 18, 2011; is acceptable for compliance with the requirements of this paragraph, provided markers are installed that identify the function of the switches installed on the J2802 box within 90 days after the effective date of this AD, in accordance with figure 1 or figure 5, as applicable, of Boeing Service Bulletin 737-28A1227, Revision 2, dated September 23, 2014.

    (2) For airplanes in Group 1, as identified in Boeing Service Bulletin 737-28A1227, Revision 2, dated September 23, 2014: Install the UCO protection system for the center and auxiliary tank fuel boost pumps, as applicable, using a method approved in accordance with the procedures specified in paragraph (r) of this AD.

    (n) AWLs Revision for UCO Protection System

    Concurrently with accomplishment of the actions required by paragraph (m) of this AD, or within 30 days after the effective date of this AD, whichever occurs later: Revise the maintenance program by incorporating the AWLs specified in paragraphs (n)(1), (n)(2), (n)(3), and (n)(4) of this AD, as applicable. The initial compliance time for the actions specified in applicable AWLs is within 1 year after accomplishment of the installation required by paragraph (m) of this AD, or within 1 year after the effective date of this AD, whichever occurs later.

    (1) For Model 737-100, -200, and -200C series airplanes without Boeing auxiliary fuel tanks: Incorporate AWL No. 28-AWL-24 of Section C., Airworthiness Limitations—Systems, of Boeing 737-100/200/200C/300/400/500 Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), Document D6-38278-CMR, Revision June 2014.

    (2) For Model 737-100, -200, and -200C series airplanes with Boeing auxiliary fuel tanks: Incorporate AWL No. 28-AWL-24 and AWL No. 28-AWL-25 of Section C., Airworthiness Limitations, of Boeing 737-100/200/200C/300/400/500 Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), Document D6-38278-CMR, Revision June 2014.

    (3) For Model 737-300, -00, and -500 series airplanes without Boeing auxiliary fuel tanks: Incorporate AWL No. 28-AWL-23 of Section C., Airworthiness Limitations—Systems, of Boeing 737-100/200/200C/300/400/500 Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), Document D6-38278-CMR, Revision June 2014.

    (4) For Model 737-300, -400, and -500 series airplanes with Boeing auxiliary fuel tanks: Incorporate AWL No. 28-AWL-23 and AWL No. 28-AWL-24 of Section C, “Fuel Systems Airworthiness Limitations,” of Boeing 737-100/200/200C/300/400/500 Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), Document D6-38278-CMR, Revision June 2014.

    (o) No Alternative Inspections or Inspection Intervals

    After accomplishment of the applicable actions specified in paragraphs (l) and (n) of this AD, no alternative inspections or inspection intervals may be used unless the inspections or inspection intervals are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (r) of this AD.

    (p) Method of Compliance for Paragraph (l) of This AD

    Incorporating AWL No. 28-AWL-21 and AWL No. 28-AWL-22 for Model 737-100, -200, and -200C series airplanes; and AWL No. 28-AWL-20 and AWL No. 28-AWL-21 for Model 737-300, -400, and -500 series airplanes; in accordance with paragraphs (g)(1) and (g)(2) of AD 2008-10-09 R1, Amendment 39-16148 (74 FR 69264, December 31, 2009); is acceptable for compliance with the corresponding AWL incorporation required by paragraph (l) of this AD.

    (q) Method of Compliance for Paragraph (a) of AD 2001-08-24

    Accomplishment of the actions required by paragraphs (g), (h), (i), and (l) of this AD, and paragraph (j) or (k) of this AD as applicable, is an acceptable method of compliance with the requirements of paragraph (a) of AD 2001-08-24.

    (r) Alternative Methods of Compliance (AMOCs)

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

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

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

    (s) Related Information

    (1) For more information about this AD, contact Serj Harutunian, Aerospace Engineer, Propulsion Branch, ANM-140L, FAA, Los Angeles Aircraft Certification Office (ACO), 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5254; fax: 562-627-5210; email: [email protected]

    (2) For BAE Systems service information identified in this AD that is not incorporated by reference, contact BAE Systems, Attention: Commercial Product Support, 600 Main Street, Room S18C, Johnson City, NY 13790-1806; phone: 607-770-3084; fax: 607-770-3015; email: [email protected]; Internet: http://www.baesystems-ps.com/customersupport. It is also available at the address specified in paragraph (t)(5) of this AD. Boeing service information identified in this AD that is not incorporated by reference is also available at the addresses specified in paragraphs (t)(4) and (t)(5) of this AD.

    (t) Material Incorporated by Reference

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

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

    (3) The following service information was approved for IBR on October 31, 2016.

    (i) Boeing Alert Service Bulletin 737-28A1210, dated August 2, 2010.

    (ii) Boeing Alert Service Bulletin 737-28A1216, dated July 29, 2010.

    (iii) Boeing Alert Service Bulletin 737-28A1216, Revision 1, dated March 26, 2012.

    (iv) Boeing Alert Service Bulletin 737-28A1227, dated August 2, 2010.

    (v) Boeing Alert Service Bulletin 737-28A1227, Revision 1, dated July 18, 2011.

    (vi) Boeing Alert Service Bulletin 737-28A1228, dated August 2, 2010.

    (vii) Boeing Alert Service Bulletin 737-28A1228, Revision 1, dated June 28, 2012.

    (viii) Boeing Service Bulletin 737-28A1210, Revision 1, dated May 13, 2011.

    (ix) Boeing Service Bulletin 737-28A1210, Revision 2, dated October 25, 2012.

    (x) Boeing Service Bulletin 737-28A1216, Revision 2, dated November 12, 2012.

    (xi) Boeing Service Bulletin 737-28A1216, Revision 3, dated July 16, 2014.

    (xii) Boeing Service Bulletin 737-28A1227, Revision 2, dated September 23, 2014.

    (xiii) Boeing 737-100/200/200C/300/400/500 Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), Document D6-38278-CMR, Revision June 2014.

    (4) For Boeing service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone: 206-544-5000, extension 1; fax: 206-766-5680; Internet https://www.myboeingfleet.com.

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

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

    Issued in Renton, Washington, on August 25, 2016. John P. Piccola, Jr., Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-21602 Filed 9-23-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-0935; Directorate Identifier 2014-NM-243-AD; Amendment 39-18652; AD 2016-19-03] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes. This AD was prompted by several reports of chafing of the wire bundles inside the electrical conduit of the forward and aft boost pumps of the numbers 1 and 4 main fuel tanks due to high vibration. These wire bundles can chafe through the wire sleeving into the insulation, exposing the wire conductors. This AD requires replacing the wire bundles inside the electrical conduit of the forward and aft boost pumps of the numbers 1 and 4 main fuel tanks with new, improved wire bundles inserted into conduit liners. This AD also requires adding a revision to the maintenance or inspection program, as applicable, to include critical design configuration control limitations (CDCCLs) for the fuel boost pump wiring. We are issuing this AD to prevent chafing of the wire bundles and subsequent arcing between the wiring and the electrical conduit creating an ignition source in the fuel tanks, which could result in a fire and consequent fuel tank explosion.

    DATES:

    This AD is effective October 31, 2016.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of October 31, 2016.

    ADDRESSES:

    For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone: 206-544-5000, extension 1; fax: 206-766-5680; Internet: https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-0935.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-0935; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Tung Tran, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle Aircraft Certification Office, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6505; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes. The SNPRM published in the Federal Register on March 8, 2016 (81 FR 12041) (“the SNPRM”). We preceded the SNPRM with a notice of proposed rulemaking (NPRM) that published in the Federal Register on May 1, 2015 (80 FR 24850) (“the NPRM”). The NPRM proposed to require replacing the wire bundles inside the electrical conduit of the forward and aft boost pumps of the numbers 1 and 4 main fuel tanks with new, improved wire bundles inserted into conduit liners. The NPRM was prompted by several reports of chafing of the wire bundles inside the electrical conduit of the forward and aft boost pumps of the numbers 1 and 4 main fuel tanks due to high vibration. These wire bundles can chafe through the wire sleeving into the insulation, exposing the wire conductors. The SNPRM proposed to require a revision to the maintenance or inspection program, as applicable, to include CDCCLs for the fuel boost pump wiring. We are issuing this AD to prevent chafing of the wire bundles and subsequent arcing between the wiring and the electrical conduit creating an ignition source in the fuel tanks, which could result in a fire and consequent fuel tank explosion.

    Comments

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

    Conclusion

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

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

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

    Related Service Information Under 1 CFR Part 51

    We reviewed the following service information:

    • Boeing Alert Service Bulletin 747-28A2306, dated October 2, 2014. The service information describes procedures for replacing the wire bundles of the electrical conduit inside the electrical conduit of the forward and aft boost pumps of the numbers 1 and 4 main fuel tanks.

    • Boeing 747-100/200/300/SP Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), Document D6-13747-CMR, Revision June 2014. Among other things, Document D6-13747-CMR describes CDCCL AWL No. 28-AWL-24 for the fuel boost pump wiring.

    • Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), of Boeing 747-400 Maintenance Planning Data (MPD) Document D621U400-9, Revision June 2014. Among other things, Section 9 describes CDCCL AWL No. 28-AWL-35 for the fuel boost pump wiring.

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

    Costs of Compliance

    We estimate that this AD affects 176 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S.
  • operators
  • Replacement Up to 53 work-hours × $85 per hour = $4,505 $4,600 Up to $9,105 Up to $1,602,480. Revise maintenance or inspection program 1 work-hour × $85 per hour = $85 $0 $85 $14,960.
    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-19-03 The Boeing Company: Amendment 39-18652; Docket No. FAA-2015-0935; Directorate Identifier 2014-NM-243-AD. (a) Effective Date

    This AD is effective October 31, 2016.

    (b) Affected ADs

    This AD affects AD 2011-15-03, Amendment 39-16750 (76 FR 41659, July 15, 2011). (“AD 2011-15-03”)

    (c) Applicability

    This AD applies to The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 747-28A2306, dated October 2, 2014.

    (d) Subject

    Air Transport Association (ATA) of America Code 28, Fuel.

    (e) Unsafe Condition

    This AD was prompted by several reports of chafing of the wire bundles inside the electrical conduit of the forward and aft boost pumps of the numbers 1 and 4 main fuel tanks due to high vibration. These wire bundles can chafe through the wire sleeving into the insulation, exposing the wire conductors. We are issuing this AD to prevent chafing of the wire bundles and subsequent arcing between the wiring and the electrical conduit creating an ignition source in the fuel tanks, which could result in a fire and consequent fuel tank explosion.

    (f) Compliance

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

    (g) Replacement

    Within 60 months after the effective date of this AD: Replace the wire bundles inside the electrical conduit of the forward and aft boost pumps of the numbers 1 and 4 main fuel tanks with new, improved wire bundles inserted into conduit liners, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 747-28A2306, dated October 2, 2014. Accomplishing the replacement required by this paragraph terminates the inspections required by paragraphs (g), (h), and (n) of AD 2011-15-03.

    (h) Maintenance or Inspection Program Revision

    Within 180 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate critical design configuration control limitation (CDCCL) Airworthiness Limitation (AWL) No. 28-AWL-24, “Fuel Boost Pump Wires In Conduit Installation—In Fuel Tank,” of Sub-section C.1, “Fuel Tank Ignition Prevention,” of Section C., “Airworthiness Limitations—Systems,” of the Boeing 747-100/200/300/SP Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs) Document D6-13747-CMR, Revision June 2014; or CDCCL AWL No. 28-AWL-35, “Fuel Boost Pump Wires In Conduit Installation—In Fuel Tank,” of Sub-section B.1, “Fuel System Ignition Prevention,” of Section B, “Airworthiness Limitations (AWLs)—Systems,” of Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), of Boeing 747-400 Maintenance Planning Data (MPD) Document D621U400-9, Revision June 2014; as applicable.

    (i) No Alternative Actions, Intervals, and/or CDCCLs

    After accomplishing the revision required by paragraph (h) of this AD, no alternative actions (e.g., inspections), intervals, and/or CDCCLs may be used unless the actions, intervals, and/or CDCCLs are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (j) of this AD.

    (j) Alternative Methods of Compliance (AMOCs)

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

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

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

    (k) Related Information

    For more information about this AD, contact Tung Tran, Aerospace Engineer, Propulsion Branch, ANM-140S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6505; fax: 425-917-6590; email: [email protected]

    (l) Material Incorporated by Reference

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

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

    (i) Boeing Alert Service Bulletin 747-28A2306, dated October 2, 2014.

    (ii) Boeing 747-100/200/300/SP Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs) Document D6-13747-CMR, Revision June 2014.

    (iii) Section 9, Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), of Boeing 747-400 Maintenance Planning Data (MPD) Document D621U400-9, Revision June 2014.

    (3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; phone: 206-544-5000, extension 1; fax: 206-766-5680; Internet: https://www.myboeingfleet.com.

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

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

    Issued in Renton, Washington, on September 6, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-22188 Filed 9-23-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 145 [Docket No.: FAA-2016-8744; Amdt. No. 145-31] RIN 2120-AK86 Repair Stations; Response to Public Comments AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule; confirmation of effective date and response to public comments.

    SUMMARY:

    This action confirms the effective date and adopts as final the interim final rule published on July 27, 2016, and responds to the comments received on that interim final rule. The rule removed the requirement that a repair station with an airframe rating provide suitable permanent housing to enclose the largest type and model aircraft listed on its operations specifications. The FAA also revised its general housing and facilities regulation to provide that a repair station's housing for its facilities, equipment, materials, and personnel must be consistent not only with its ratings, but also with its limitations to those ratings. Finally, the FAA added an additional general purpose limited rating to cover maintenance work not covered by the existing 12 limited rating categories.

    DATES:

    Effective September 26, 2016.

    ADDRESSES:

    For information on where to obtain copies of rulemaking documents and other information related to this action, see “How To Obtain Additional Information” in the SUPPLEMENTARY INFORMATION section of this document.

    FOR FURTHER INFORMATION CONTACT:

    For technical questions concerning this action, contact Susan Traugott Ludwig, Aircraft Maintenance Division, Repair Station Branch, AFS-340, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (214) 587-8887; email [email protected]

    SUPPLEMENTARY INFORMATION: Background

    The FAA issued an interim final rule on July 15, 2016 (81 FR 49158) to revise its repair station rules to remove the one-size-fits-all requirement of § 145.103(b) and provide an additional limited rating category to cover work not addressed by the existing 12 categories. These actions will assist the repair station industry by eliminating the costly housing requirement that is not necessary in many cases.

    Discussion of Comments

    The FAA received two comments from the Aeronautical Repair Station Association (ARSA) and Airbus. ARSA stated that it fully supported the agency's actions as the regulations were unclear and needed to be updated. ARSA noted that although the changed rule still does not distinguish between repair stations working on completed aircraft and those working on airframe components, the removal of specified housing for airframe ratings will certainly allow for performance-based compliance. ARSA also requested the FAA consider removing § 145.61(b) in its entirety. ARSA asserted that it seems the language in § 145.61(a) alone would be sufficient to ensure appropriate ratings and limitations could be determined without the list in § 145.61(b). ARSA stated the reinstitution of paragraph (b)(13) is merely a specific acknowledgement of the general language in § 145.61(a). ARSA also specifically requested that the agency not deem its observation as opposition to the interim final rule, rather, a suggestion for consideration.

    The FAA agrees with ARSA's comment that the removal of specified airframe rated housing requirements will allow for performance-based compliance. The FAA notes ARSA's suggestion to remove § 145.61(b) in its entirety and may consider it in a future rulemaking effort. Airbus requested clarification on the correct title for § 145.205, Maintenance, preventive maintenance, and alterations performed for certificate holders under parts 121, 125, and 135, and for foreign persons operating a U.S.-registered aircraft in common carriage under part 129. Airbus noted the word “performed” is spelled “per-formed” in the interim final rule and spelled “performed” in the electronic Code of Regulations (eCFR). Airbus asked which format was correct.

    The FAA notes the title in the eCFR is correct.

    Conclusion

    After consideration of the comments submitted in response to the interim final rule, the FAA has determined that no further rulemaking action is necessary. Therefore, amendment No. 145-31 remains in effect.

    How To Obtain Additional Information A. Rulemaking Documents

    An electronic copy of a rulemaking document my be obtained by using the Internet—

    1. Search the Federal eRulemaking Portal (http://www.regulations.gov);

    2. Visit the FAA's Regulations and Policies Web page at http://www.faa.gov/regulations_policies/ or

    3. Access the Government Printing Office's Web page at http://www.thefederalregister.org/fdsys/.

    Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267-9680.

    B. Comments Submitted to the Docket

    Comments received may be viewed by going to http://www.regulations.gov and following the online instructions to search the docket number for this action. Anyone is able to search the electronic form of all comments received into any of the FAA's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.).

    C. Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document, may contact its local FAA official, or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the Internet, visit http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

    Accordingly, the interim rule published July 15, 2016 (81 FR 49158), is adopted as final without change.

    Issued under authority provided by 49 U.S.C. 106(f), 44701(a), and 44703 in Washington, DC, on September 21, 2016. Lirio Liu, Director, Office of Rulemaking.
    [FR Doc. 2016-23121 Filed 9-23-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF DEFENSE Department of the Army 32 CFR Part 553 [Docket No. USA-2015-HQ-0046] RIN 0702-AA60 Army National Military Cemeteries AGENCY:

    Department of the Army, DoD.

    ACTION:

    Final rule.

    SUMMARY:

    The Department of the Army is publishing its regulation for the development, operation, maintenance, and administration of the Army National Cemeteries to reflect their statutory name change to the Army National Military Cemeteries and changes in the management structure, to adopt modifications suggested by the Department of the Army Inspector General and approved by the Secretary of the Army, and to implement changes in interment eligibility reflecting changes in law.

    DATES:

    This rule is effective on October 26, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Robert Quackenbush, Army National Military Cemeteries, 703-614-7150.

    SUPPLEMENTARY INFORMATION:

    A. Executive Summary I. Purpose of the Regulatory Action

    a. This final rule modifies the Army's regulation governing Army National Military Cemeteries, which consist of Arlington National Cemetery and the U.S. Soldiers' and Airmen's Home National Cemetery, to reflect changes in the management structure of the Army National Military Cemeteries created by Army General Orders 2014-74 and 2014-75 and the National Defense Authorization Act for Fiscal Year 2012, Public Law 112-81, section 591 (2011) (adding chapter 446 to title 10); to incorporate modifications to eligibility as enacted by Section 1 to Public Law 114-158, dated 20 May 2016 which amends 38 U.S.C. 2410; to adopt modifications suggested by the Department of the Army Inspector General as approved by the Secretary of the Army; to implement interment, inurnment, and memorialization eligibility restrictions, including those mandated by 10 U.S.C. 985 and 38 U.S.C. 2411; and to prohibit the reservation of gravesites as mandated by 38 U.S.C. 2410a.

    b. The legal authority for this regulatory action is section 591 of the National Defense Authorization Act for Fiscal Year 2012, Public Law 112-81 (2011), which added chapter 446 to title 10. Chapter 446 requires the Secretary of the Army to prescribe regulations and policies as may be necessary to administer the Army National Military Cemeteries, and it codifies the role of the Executive Director as the individual responsible for exercising authority, direction, and control over all aspects of the Army National Military Cemeteries. Throughout part 553, the Army replaces references to the Superintendent of the Cemetery, the Adjutant General, and Commanding General, Military District of Washington, with “Executive Director” to reflect the current organizational structure, which was implemented through Army General Orders 2014-74 and 2014-75 and codified in the National Defense Authorization Act of 2012.

    II. Summary of and Response to Public Comments

    The proposed rule was published in the Federal Register on May 11, 2016 (81 FR 29230) for a 60-day comment period. The Department of the Army received fourteen comments from fourteen individuals. Thirteen of the comments addressed section 553.33(c)(8) concerning the use of bicycles in the cemetery. One of the thirteen comments also addressed section 553.33(c)(7) concerning use of the cemetery for physical training. The final comment addressed section 553.33(c)(14) concerning possession of firearms within the cemetery. The Army's responses to these comments are discussed below.

    Thirteen comments addressed the updated restrictions for operating bicycles within the cemetery. Arguments were made for opening the cemetery to bicycles for riders' convenience as a thruway between Joint Base Myer-Henderson Hall/Memorial Drive, as an environmentally friendly method for seeing the cemetery, as a more neighborly approach to surrounding Arlington residents, as a better method for visiting distant gravesites, and for the health benefits to be gained from riding bicycles in the cemetery. Several commenters argued that bicycles do not impact the decorum of the cemetery.

    The Army disagrees with and rejects these comments for several reasons related to the nature of cemetery operations, decorum, security, and safety.

    The cemetery is not intended to serve as a shortcut route for bicyclists commuting to and from other locations. Rather, as an operational cemetery conducting up to 30 funerals a day and hosting official visits from visiting dignitaries on its narrow roads, the primary purpose of these roads are to facilitate funeral processions, military units, official vehicles to include their escorts, and cemetery equipment and vehicles operating in the daily care of the cemetery.

    Additionally, while the Army assumes that most riders bear no malice of intent to demonstrate disrespect or violate decorum or decency, bicyclists traversing the cemetery grounds, even at the posted speed limit, can and do impact the decorum of funeral processions and services, which can number up to 30 per day, as cyclists pass along or across these procession routes. These funeral processions include not just the families and mourners, but include caissons drawn by horses, military bands, and military escort elements all travelling at a walking pace. For these services, bus tour operators and vehicles are forced to stop because there is simply not enough room to pass. This ensures proper decorum. Likewise, visitors on foot typically stop and yield to the processions also as a sign of respect. Previous trial periods with bicyclists in the cemetery showed bicyclists did not typically stop for these processions. The cemetery does not have the requisite staff to monitor and enforce this behavior for bicyclists.

    There are legitimate safety concerns with bicyclists mixing with pedestrians. Although they are moving under their own power, bicyclists move at a rate typically 10 times faster than most walking paces. Bicyclists passing the 4 million visitors walking along these roads or in open air tour buses pose risks to themselves, pedestrians, and bus passengers. Additionally, bicyclists riding in and around the cemetery are travelling at higher speeds than the funeral processions. Since there are no bike paths on the cemetery grounds, mixing bicyclists with these processions also constitutes a safety hazard.

    The comment arguing for public convenience is not supported on its merits. The current route used in the cemetery is 1.2 miles from South Post Chapel to Hwy 110 at Memorial Drive. There is an equally convenient 1.3 mile route around the cemetery from the South Post Chapel along McNair Road, Marshall Road and out the Wright Gate to the bike path along Highway 110 which can bring a rider to the same point on Memorial Drive—a greater distance of only one-tenth of one mile. For those desiring to visit their loved one's grave by bicycle, the new rule still accommodates this ability with no substantive change from current policy. Guests desiring to visit a loved one's grave can still obtain a temporary pass at the Welcome Center just as they do now, and with that pass, ride their bicycles to and from the gravesite.

    The Army also notes that tour buses and cars are not allowed free reign to enter the cemetery. For security purposes, they are restricted in where they can go within the cemetery. Moreover, for the same security reasons, they cannot enter without first obtaining a pass from the Welcome Center. With the changes in the new rule, the Army is simply imposing the same security restriction on bicyclists as they do on motorists and tour buses who desire to drive into the cemetery.

    Commenters also expressed support for expanding bicycle use and for installing bike racks to accommodate cyclists. The Army notes that there are already bike racks at the Welcome Center for those coming to Arlington via bicycle. On most days there is ample space available on these bike racks.

    Another commenter stated that the Army is incorrect in its claim that the National Environmental Protection Act (NEPA) does not apply because the proposed rule would completely ban the ongoing activity of bicycle transportation though the cemetery. The Army believes the commenter's facts are wrong. The rule does not completely ban bicyclists. In fact, it retains the current practice for those wishing to visit a gravesite on bicycle to obtain a pass at the Welcome Center in order to do so. The only substantive change is to not allow transit via the Meigs/Sherman/Schley Drives through the cemetery. However, the Army believes the alternate McNair/Marshall/Hwy 110 bike path route described above still allows the same bicyclists the means to reach Memorial Drive at a negligibly increased distance by bicycle. Therefore, the rule does not significantly alter ongoing activities. The Army determined that implementing the new rule does not individually or cumulatively have any significant environmental consequences. Consequently, the Army's proposed actions are categorically excluded recreational and law enforcement activities and do not require an environmental assessment or environmental impact statement under Army Regulation 200-2.

    Another commenter raised the point that the Army should allow physical training runs through the cemetery which would allow time for reflection on those veterans interred in the cemetery while exercising. The commenter considered it an honor to conduct physical training in a VA National Cemetery where the commenter had been previously stationed. The Army does grant exceptions to military units from the Army staff and from Joint Base Myer-Henderson Hall conduct unit level physical training to support this type of reflection on a case-by-case basis. However, the training is always completed early in the morning before the Cemetery is open to visitors. Physical training during operating hours pose a decorum and safety issue. While the Army recognizes that being permitted to exercise at other cemeteries might be permissible and could provide an opportunity for reflection on the sacrifices made by those interred, exercise within the grounds during hours of operation while interments are being conducted does not reflect the decorum desired by the Army. Additionally, unlike most VA cemeteries, Arlington National Cemetery receives over 4 million tourists each year who visit the Tomb of the Unknown Soldier, the Kennedy family gravesites, the Arlington House administered by the National Park Service, and other notable sites. The sheer number of visitors, tour buses, along with the 30 funeral processions which include escort elements, bands, and caissons that occur each day throughout the cemetery grounds do not provide a safe environment conducive to physical training.

    The final comment concerned the prohibition of firearms. The commenter argued that Arlington National Cemetery is more analogous to a park than an Army installation and lacks the substantive access control and large security forces typically found on Army installations. The commenter further argued that there is no need to protect sensitive facilities and personnel at the Cemetery. The Army disagrees with this comment. Arlington Cemetery does have a substantial security force, exercises access control and shares the same type of security concerns found with other military facilities. Additionally, the cemetery hosts U.S. distinguished visitors, foreign Heads of State, and other dignitaries for over 3000 wreath laying ceremonies each year at the Tomb of the Unknown Soldier. These funeral processions and official ceremonies require significantly greater security concerns than those found at typical parks cited by the commenter.

    In addition to the comments provided by the public above, the final rule also includes three modifications from the draft rule released in the May-July public comment period. Two of the modifications were required to comply with Public Law 114-158, enacted on 20 May 2016 after the draft rule was released for public comment. This new law recently modified eligibility for inurnment at Arlington National Cemetery to include active duty designees as found in the GI Bill Improvement Act of 1977. The third modification was made by the cemetery staff to add clarity to eligibility for interment in the soon to be opened Tomb of Remembrance.

    The two modifications required by Public Law were in § 553.1 Definitions, and § 553.13 Eligibility for inurnment in Arlington National Cemetery. The third modification to add clarity to eligibility for interment in the Tomb of Remembrance is captured in § 553.24, Subsequently recovered remains.

    B. Regulatory Flexibility Act

    The Army has determined that the Regulatory Flexibility Act does not apply because the rule does not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612.

    C. Unfunded Mandates Reform Act

    The Army has determined that the Unfunded Mandates Reform Act does not apply because the rule does not include a mandate that may result in estimated costs to State, local, or tribal governments in the aggregate, or the private sector, of $100 million or more.

    D. National Environmental Policy Act

    Neither an environmental analysis nor an environmental impact statement under the National Environmental Policy Act is required. The changes made to the prior regulation by this amendment reflect existing policies and does not significantly alter ongoing activities, nor does this amendment constitute a new use of the property.

    E. Paperwork Reduction Act

    The Army has determined that this rule does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.

    F. Executive Order 12630 (Government Actions and Interference With Constitutionally Protected Property Rights)

    The Army has determined that E.O. 12630 does not apply because the rule does not impair private property rights.

    G. Executive Order 12866 (Regulatory Planning and Review) and E.O. 13563 (Improving Regulation and Regulatory Review)

    Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action” under section 3(f) of Executive Order 12866.

    H. Executive Order 13045 (Protection of Children From Environmental Health Risk and Safety Risks)

    The Army has determined that according to the criteria defined in E.O. 13045, the requirements of that Order do not apply to this rule.

    I. Executive Order 13132 (Federalism)

    The Army has determined that, according to the criteria defined in E.O. 13132, the requirements of that Order do not apply to this rule because the rule will not have a substantial effect on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government.

    Patrick K. Hallinan, Executive Director. List of Subjects in 32 CFR Part 553

    Armed forces, Armed forces reserves, Military personnel, Monuments and memorials, Veterans.

    For the reasons stated in the preamble, the Department of the Army revises 32 CFR part 553 to read as follows: PART 553—ARMY NATIONAL MILITARY CEMETERIES Sec. 553.1 Definitions. 553.2 Purpose. 553.3 Statutory authorities. 553.4 Scope and applicability. 553.5 Maintaining order. 553.6 Standards for managing Army National Military Cemeteries. 553.7 Arlington Memorial Amphitheater. 553.8 Permission to install utilities. 553.9 Assignment of gravesites or niches. 553.10 Proof of eligibility. 553.11 General rules governing eligibility for interment, inurnment, and memorialization at Arlington National Cemetery. 553.12 Eligibility for interment in Arlington National Cemetery. 553.13 Eligibility for inurnment in Arlington National Cemetery Columbarium. 553.14 Eligibility for interment of cremated remains in the Arlington National Cemetery Unmarked Area. 553.15 Eligibility for group burial in Arlington National Cemetery. 553.16 Eligibility for memorialization in an Arlington National Cemetery memorial area. 553.17 Arlington National Cemetery interment/inurnment agreement. 553.18 Eligibility for burial in U.S. Soldiers' and Airmen's Home National Cemetery. 553.19 Ineligibility for interment, inurnment, or memorialization in an Army National Military Cemetery. 553.20 Prohibition of interment, inurnment, or memorialization in an Army National Military Cemetery of persons who have committed certain crimes. 553.21 Findings concerning the commission of certain crimes where a person has not been convicted due to death or flight to avoid prosecution. 553.22 Exceptions to policies for interment, inurnment, or memorialization at Arlington National Cemetery. 553.23 Placement of cremated remains at Army National Military Cemeteries. 553.24 Subsequently recovered remains. 553.25 Disinterments and disinurnments of remains. 553.26 Design of Government-furnished headstones, niche covers, and memorial markers. 553.27 Inscriptions on Government-furnished headstones, niche covers, and memorial markers. 553.28 Private headstones and markers. 553.29 Permission to construct private headstones and markers. 553.30 Inscriptions on private headstones and markers. 553.31 Memorial and commemorative monuments (other than private headstones or markers). 553.32 Conduct of memorial services and ceremonies. 553.33 Visitors rules for Army National Military Cemeteries. 553.34 Soliciting and vending. 553.35 Media. Authority:

    10 U.S.C. 985, 1128, 1481, 1482, 3013, 4721-4726; 24 U.S.C. 295a, 412; 38 U.S.C. 2402 note, 2409- 2411, 2413; 40 U.S.C. 9102.

    § 553.1 Definitions.

    As used in this part, the following terms have these meanings:

    Active duty. Full-time duty in the active military service of the United States.

    (1) This includes:

    (i) Active Reserve component duty performed pursuant to title 10, United States Code.

    (ii) Service as a cadet or midshipman currently on the rolls at the U.S. Military, U.S. Naval, U.S. Air Force, or U.S. Coast Guard Academies.

    (iii) Active duty for operational support.

    (iv) Persons whose service has been determined to be active duty service pursuant to section 401 of the GI Bill Improvement Act of 1977 (Pub. L. 95-202; 38 U.S.C. 106 note) as of 20 May 2016 and the remains of that person were not already formally interred or inurned as of 20 May 2016 or that person died on or after 20 May 2016.

    (2) This does not include:

    (i) Full-time duty performed under title 32, United States Code.

    (ii) Active duty for training, initial entry training, annual training duty, or inactive-duty training for members of the Reserve components.

    Active duty for operational support (formerly active duty for special work).

    A tour of active duty for Reserve personnel authorized from military or Reserve personnel appropriations for work on Active component or Reserve component programs. The purpose of active duty for operational support is to provide the necessary skilled manpower assets to support existing or emerging requirements and may include training.

    Active duty for training. A category of active duty used to provide structured individual and/or unit training, including on-the-job training, or educational courses to Reserve component members. Included in the active duty for training category are annual training, initial active duty for training, or any other training duty.

    Annual training. The minimum period of active duty for training that Reserve members must perform each year to satisfy the training requirements associated with their Reserve component assignment.

    Armed Forces. The U.S. Army, Navy, Marine Corps, Coast Guard, Air Force and their Reserve components.

    Army National Military Cemeteries. Arlington National Cemetery and the U.S. Soldiers' and Airmen's Home National Cemetery.

    Category 4, 5, or 5+ Posts. Category 4, 5, or 5+ posts, including the equivalent classifications as determined by the Department of State that were used prior to 2004 or may be used subsequently.

    Child, minor child, permanently dependent child, unmarried adult child.

    (1) Child.

    (i) Natural child of a primarily eligible person, born in wedlock;

    (ii) Natural child of a female primarily eligible person, born out of wedlock;

    (iii) Natural child of a male primarily eligible person, who was born out of wedlock and:

    (A) Has been acknowledged in a writing signed by the male primarily eligible person;

    (B) Has been judicially determined to be the male primarily eligible person's child;

    (C) Whom the male primarily eligible person has been judicially ordered to support; or

    (D) Has been otherwise proved, by evidence satisfactory to the Executive Director, to be the child of the male primarily eligible person

    (iv) Adopted child of a primarily eligible person; or

    (v) Stepchild who was part of the primarily eligible person's household at the time of death of the individual who is to be interred or inurned.

    (2) Minor child. A child of the primarily eligible person who

    (i) Is unmarried;

    (ii) Has no dependents; and

    (iii) Is under the age of twenty-one years, or is under the age of twenty-three years and is taking a full-time course of instruction at an educational institution which the U.S. Department of Education acknowledges as an accredited educational institution.

    (3) Permanently dependent child. A child of the primarily eligible person who

    (i) Is unmarried;

    (ii) Has no dependents; and

    (iii) Is permanently and fully dependent on one or both of the child's parents because of a physical or mental disability incurred before attaining the age of twenty-one years or before the age of twenty-three years while taking a full-time course of instruction at an educational institution which the U.S. Department of Education acknowledges as an accredited educational institution.

    (4) Unmarried adult child. A child of the primarily eligible person who

    (i) Is unmarried;

    (ii) Has no dependents; and

    (iii) Has attained the age of twenty-one years.

    Close relative. The spouse, parents, adult brothers and sisters, adult natural children, adult stepchildren, and adult adopted children of a decedent.

    Commemorative monuments. Monuments or other structures or landscape features that serve to honor events in history, units of the Armed Forces, individuals, or groups of individuals that served in the Armed Forces, and that do not contain human remains or mark the location of remains in close proximity. The term does not include memorial markers erected pursuant to § 553.16.

    Derivatively eligible person. Any person who is entitled to interment or inurnment solely based on his or her relationship to a primarily eligible person, as set forth in §§ 553.12(b) and § 553.13(b) respectively.

    Disinterment. The permanent removal of interred human remains from a particular gravesite.

    Disinurnment. The permanent removal of remains from a particular niche.

    Executive Director. The person statutorily charged with exercising authority, direction, and control over all aspects of Army National Military Cemeteries.

    Federal capital crime. An offense under Federal law for which a sentence of imprisonment for life or the death penalty may be imposed.

    Former prisoner of war. A person who is eligible for or has been awarded the Prisoner of War Medal.

    Former spouse. See spouse.

    Government. The U.S. government and its agencies and instrumentalities.

    Group burial. Interment in one gravesite of one or more service members on active duty killed in the same incident or location where:

    (1) The remains cannot be individually identified; or

    (2) The person authorized to direct disposition of subsequently identified remains has authorized their interment with the other service members.

    Group remains may contain incidental remains of civilians and foreign nationals.

    Inactive-duty training.

    (1) Duty prescribed for members of the Reserve components by the Secretary concerned under 37 U.S.C. 206 or any other provision of law.

    (2) Special additional duties authorized for members of the Reserve components by an authority designated by the Secretary concerned and performed by them on a voluntary basis in connection with the prescribed training or maintenance activities of the units to which they are assigned.

    (3) In the case of a member of the Army National Guard or Air National Guard of any State, duty (other than full-time duty) under 32 U.S.C. 316, 502, 503, 504 or 505 or the prior corresponding provisions of law.

    (4) This term does not include:

    (i) Work or study performed in connection with correspondence courses,

    (ii) Attendance at an educational institution in an inactive status, or

    (iii) Duty performed as a temporary member of the Coast Guard Reserve.

    Interment. The ground burial of casketed or cremated human remains.

    Inurnment. The placement of cremated human remains in a niche.

    Media. Individuals and agencies that print, broadcast, or gather and transmit news, and their reporters, photographers, and employees.

    Memorial marker. A headstone used to memorialize a service member or veteran whose remains are unavailable for reasons listed in § 553.16.

    Memorial service or ceremony. Any activity intended to honor the memory of a person or persons interred, inurned, or memorialized in the Army National Military Cemeteries. This term includes private memorial services, public memorial services, public wreath laying ceremonies, and official ceremonies.

    Minor child. See child.

    Niche. An aboveground space constructed specifically for the placement of cremated human remains.

    Official ceremony. A memorial service or ceremony approved by the Executive Director in which the primary participants are representatives of the Government, a State government, a foreign government, or an international organization authorized by the U.S. Department of State to participate in an official capacity.

    Parent. A natural parent, a stepparent, a parent by adoption, or a person who for a period of not less than one year stood in loco parentis, or was granted legal custody by a court decree or statutory provision.

    Permanently dependent child. See child.

    Person authorized to direct disposition. The person primarily entitled to direct disposition of human remains and who elects to exercise that entitlement. Determination of such entitlement shall be made in accordance with applicable law and regulations.

    Personal representative. A person who has legal authority to act on behalf of another through applicable law, order, and regulation.

    Primarily eligible person. Any person who is entitled to interment or inurnment based on his or her service as specified in § 553.12(a) and § 553.13(a) respectively.

    Primary next of kin. (1) In the absence of a valid written document from the decedent identifying the primary next of kin, the order of precedence for designating a decedent's primary next of kin is as follows:

    (i) Spouse, even if a minor;

    (ii) Children;

    (iii) Parents;

    (iv) Siblings, to include half-blood and those acquired through adoption;

    (v) Grandparents;

    (vi) Other next of kin, in order of relationship to the decedent as determined by the laws of the decedent's state of domicile.

    (2) Absent a court order or written document from the deceased, the precedence of next of kin with equal relationships to the decedent is governed by seniority (age), older having higher priority than younger. Equal relationship situations include those involving divorced parents of the decedent, children of the decedent, and siblings of the decedent.

    Private headstones or markers. A headstone or individual memorial marker provided at private expense, in lieu of a headstone or individual memorial marker furnished by the Government.

    Private memorial service. A memorial service or ceremony conducted at the decedent's gravesite, memorial headstone, or niche.

    Public memorial service. A ceremony conducted by members of the public at a historic site in an Army National Military Cemetery.

    Public wreath-laying ceremony. A ceremony in which members of the public, assisted by the Tomb Guards, present a wreath or similar memento at the Tomb of the Unknown Soldier.

    Reserve component. The Army Reserve, the Navy Reserve, the Marine Corps Reserve, the Air Force Reserve, the Coast Guard Reserve, the Army National Guard of the United States, and the Air National Guard of the United States.

    Spouse, former spouse, subsequently remarried spouse.

    (1) Spouse. A person who is legally married to another person.

    (2) Former spouse. A person who was legally married to another person at one time but was not legally married to that person at the time of one of their deaths.

    (3) Subsequently remarried spouse. A derivatively eligible spouse who was married to the primarily eligible person at the time of the primarily eligible person's death and who subsequently remarried another person.

    State capital crime. Under State law, the willful, deliberate, or premeditated unlawful killing of another human being for which a sentence of imprisonment for life or the death penalty may be imposed.

    Subsequently recovered remains. Additional remains belonging to the decedent that are recovered or identified after the decedent's interment or inurnment.

    Subsequently remarried spouse. See spouse.

    Unmarried adult child. See child.

    Veteran. A person who served in the U.S. Armed Forces and who was discharged or released under honorable conditions.

    § 553.2 Purpose.

    This part specifies the authorities and assigns the responsibilities for the development, operation, maintenance, and administration of the Army National Military Cemeteries.

    § 553.3 Statutory authorities.

    (a) Historical. Act of July 17, 1862, Sec. 18, 12 Stat. 594, 596; Act of February 22, 1867, Ch. 61, 14 Stat. 399; and the National Cemeteries Act of 1973, Public Law 93-43, 87 Stat. 75 (1973). The National Cemeteries Act established the National Cemetery System, which primarily consists of national cemeteries transferred from the management authority of the Department of the Army to the (now) Department of Veterans Affairs. Section 6(a) of the Act exempted Arlington National Cemetery and the Soldiers' and Airmen's Home National Cemetery from transfer to the National Cemetery System, leaving them under the management authority of the Secretary of the Army.

    (b) Current. Pursuant to 10 U.S.C. 4721(a), the Secretary of the Army shall develop, operate, manage, oversee, and fund the Army National Military Cemeteries. Section 4721(c) provides that the Army National Military Cemeteries are under the jurisdiction of Headquarters, Department of the Army, and 10 U.S.C. 4721(d) provides that the Secretary of the Army shall prescribe such regulations and policies as may be necessary to administer the Army National Military Cemeteries. The responsibilities of Headquarters, Department of the Army with regard to the Army National Military Cemeteries are enumerated in 10 U.S.C. 4721-4726 and Army General Orders 2014-74 and 2014-75.

    § 553.4 Scope and applicability.

    (a) Scope. The development, maintenance, administration, and operation of the Army National Military Cemeteries are governed by this part, Army Regulation 290-5, and Department of the Army Pamphlet 290-5. The development, maintenance, administration, and operation of Army post cemeteries are not covered by this part.

    (b) Applicability. This part is applicable to all persons on, engaging in business with, or seeking access to or benefits from the Army National Military Cemeteries, unless otherwise specified.

    § 553.5 Maintaining order.

    The Executive Director may order the removal from, and bar the re-entry onto, Army National Military Cemeteries of any person who acts in violation of any law or regulation, including but not limited to demonstrations and disturbances as outlined in 38 U.S.C. 2413, and in this part. This authority may not be re-delegated.

    § 553.6 Standards for managing Army National Military Cemeteries.

    (a) The Executive Director is responsible for establishing and maintaining cemetery layout plans, including plans setting forth sections with gravesites, memorial areas with markers, and columbaria with niches, and landscape planting plans.

    (b) New sections or areas may be opened and prepared for interments or for installing memorial markers only with the approval of the Executive Director.

    § 553.7 Arlington Memorial Amphitheater.

    (a) In accordance with 24 U.S.C. 295a:

    (1) No memorial may be erected and no remains may be entombed in the Arlington Memorial Amphitheater unless specifically authorized by Congress; and

    (2) The character, design, or location of any memorial authorized by Congress for placement in the Amphitheater is subject to the approval of the Secretary of Defense or his or her designee.

    (b) The Secretary of Defense or his or her designee will seek the advice of the Commission of Fine Arts in such matters, in accordance with 40 U.S.C. 9102.

    (c) Tributes offered for those interred in the Tomb of the Unknown Soldier for placement in the Arlington Memorial Amphitheater display room are not memorials for purposes of this section.

    § 553.8 Permission to install utilities.

    (a) The installation of utilities in Army National Military Cemeteries, including but not limited to, telephone and fiber optic lines, electric lines, natural gas lines, water pipes, storm drains, and sanitary sewers, must be authorized by the Executive Director.

    (b) Requests for licenses, permits, or easements to install water, gas, or sewer lines, or other utilities or equipment on or across an Army National Military Cemetery or an approach road in which the Government has a right-of-way, fee simple title, or other interest, must be sent to the Executive Director, who will process the request in accordance with Army policy. Requests must include a complete description of the type of license, permit, or easement desired and a map showing the location of the project.

    § 553.9 Assignment of gravesites or niches.

    (a) All eligible persons will be assigned gravesites or niches without discrimination as to race, color, sex, religion, age, or national origin and without preference to military grade or rank.

    (b) The Army National Military Cemeteries will enforce a one-gravesite-per-family policy. Once the initial interment or inurnment is made in a gravesite or niche, each additional interment or inurnment of eligible persons must be made in the same gravesite or niche, except as noted in paragraph (f) of this section. This includes multiple primarily eligible persons if they are married to each other.

    (c) In accordance with 38 U.S.C. 2410A(a)(2) the Secretary of the Army may waive the prohibition in paragraph (b) of this section as the Secretary of the Army deems appropriate.

    (d) A gravesite reservation will be honored if it meets the following requirements, unless it is cancelled by the Executive Director:

    (1) The gravesite was properly reserved by law before January 1, 1962, and

    (2) An eligible person was interred in the reserved gravesite prior to January 1, 2017.

    (e) The Executive Director may cancel a gravesite reservation:

    (1) Upon determination that a derivatively eligible spouse has remarried;

    (2) Upon determination that the reservee's remains have been buried elsewhere or otherwise disposed of;

    (3) Upon determination that the reservee desires to or will be interred in the same gravesite with the predeceased, and doing so is feasible; or

    (4) Upon determination that the reservee would be 120 years of age and there is no record of correspondence with the reservee within the last two decades.

    (f) In cases of reservations meeting the requirements of 38 U.S.C. 2410A note, where more than one gravesite was reserved (on the basis of the veteran's eligibility at the time the reservation was made) and no interment has yet been made in any of the sites, the one-gravesite-per-family policy will be enforced, unless waived by the Executive Director. Gravesite reservations will be honored only if the decedents meet the eligibility criteria for interment in Arlington National Cemetery that is in effect at the time of need, and the reserved gravesite is available.

    (g) Where a primarily eligible person has been or will be interred as part of a group burial or has been or will be memorialized in a memorial area at Arlington National Cemetery, the Executive Director will assign a gravesite or niche for interment or inurnment of a derivatively eligible person.

    (h) Gravesites or niches shall not be reserved or assigned prior to the time of need.

    (i) The selection of gravesites and niches is the responsibility of the Executive Director. The selection of specific gravesites or niches by the family or other representatives of the deceased at any time is prohibited.

    § 553.10 Proof of eligibility.

    (a) The personal representative or primary next of kin is responsible for providing appropriate documentation to verify the decedent's eligibility for interment or inurnment.

    (b) The personal representative or primary next of kin must certify in writing that the decedent is not prohibited from interment, inurnment, or memorialization under § 553.20 because he or she has committed or been convicted of a Federal or State capital crime or is a convicted Tier III sex offender as defined in 38 U.S.C. 2411.

    (c) For service members who die on active duty, a statement of honorable service from a general court martial convening authority is required. If the certificate of honorable service cannot be granted, the service member is ineligible for interment, inurnment, and memorialization pursuant to § 553.19(i).

    (d) When applicable, the following documents are required:

    (1) Death certificate;

    (2) Proof of eligibility as required by paragraphs (e) through (g) of this section;

    (3) Any additional documentation to establish the decedent's eligibility (e.g., marriage certificate, birth certificate, waivers, statements that the decedent had no children);

    (4) Burial agreement;

    (5) Notarized statement that the remains are unavailable for the reasons set forth in § 553.16; and

    (6) A certificate of cremation or notarized statement attesting to the authenticity of the cremated human remains and that 100% of the cremated remains received from the crematorium are present. The Executive Director may, however, allow a portion of the cremated remains to be removed by the crematorium for the sole purpose of producing commemorative items.

    (7) Any other document as required by the Executive Director.

    (e) The following documents may be used to establish the eligibility of a primarily eligible person:

    (1) DD Form 214, Certificate of Release or Discharge from Active Duty;

    (2) WD AGO 53 or 53-55, Enlisted Record and Report of Separation Honorable Discharge;

    (3) WD AGO 53-98, Military Record and Report of Separation Certificate of Service;

    (4) NAVPERS-553, Notice of Separation from U.S. Naval Service;

    (5) NAVMC 70-PD, Honorable Discharge, U.S. Marine Corps; or;

    (6) DD Form 1300, Report of Casualty (required in the case of death of an active duty service member).

    (f) In addition to the documents otherwise required by this section, a request for interment or inurnment of a subsequently remarried spouse must be accompanied by:

    (1) A notarized statement from the new spouse of the subsequently remarried spouse agreeing to the interment or inurnment and relinquishing any claim for interment or inurnment in the same gravesite or niche.

    (2) Notarized statement(s) from all of the children from the prior marriage agreeing to the interment or inurnment of their parents in the same gravesite or niche.

    (g) In addition to the documents otherwise required by this section, a request for interment or inurnment of a permanently dependent child must be accompanied by:

    (1) A notarized statement as to the marital status and degree of dependency of the decedent from an individual with direct knowledge; and

    (2) A physician's statement regarding the nature and duration of the physical or mental disability; and

    (3) A statement from someone with direct knowledge demonstrating the following factors:

    (i) The deceased lived most of his or her adult life with one or both parents, one or both of whom are otherwise eligible for interment;

    (ii) The decedent's children, siblings, or other family members, other than the eligible parent, waive any derivative claim to be interred at Arlington National Cemetery, in accordance with the Arlington National Cemetery Burial Agreement.

    (h) Veterans or primary next of kin of deceased veterans may obtain copies of their military records by writing to the National Personnel Records Center, Attention: Military Personnel Records, 9700 Page Avenue St. Louis, Missouri 63132 or using their Web site. All others may request a record by completing and submitting Standard Form 180.

    (i) The burden of proving eligibility lies with the party who requests the burial. The Executive Director will determine whether the submitted evidence is sufficient to support a finding of eligibility.

    § 553.11 General rules governing eligibility for interment, inurnment, and memorialization at Arlington National Cemetery.

    (a) Only those persons who meet the criteria of § 553.12 or are granted an exception to policy pursuant to § 553.22 may be interred in Arlington National Cemetery. Only those persons who meet the criteria of § 553.13 or are granted an exception to policy pursuant to § 553.22 may be inurned in Arlington National Cemetery. Only those persons who meet the criteria of § 553.14 may be interred in the Arlington National Cemetery Unmarked Area. Only those persons who meet the criteria of § 553.15 may be interred in an Arlington National Cemetery group burial. Only those persons who meet the criteria of § 553.16 may be memorialized in Arlington National Cemetery.

    (b) Derivative eligibility for interment or inurnment may be established only through a decedent's connection to a primarily eligible person and not to another derivatively eligible person.

    (c) No veteran is eligible for interment, inurnment, or memorialization in Arlington National Cemetery unless the veteran's last period of active duty ended with an honorable discharge. A general discharge under honorable conditions is not sufficient for interment, inurnment or memorialization in Arlington National Cemetery.

    (d) For purposes of determining whether a service member has received an honorable discharge, final determinations regarding discharges made in accordance with procedures established by chapter 79 of title 10, United States Code, will be considered authoritative.

    (e) The Secretary of the Army has the authority to act on requests for exceptions to the provisions of the interment, inurnment, and memorialization eligibility policies contained in this part. The Secretary of the Army may delegate this authority to the Executive Director on such terms deemed appropriate.

    (f) Individuals who do not qualify as a primarily eligible person or a derivatively eligible person, but who are granted an exception to policy to be interred or inurned pursuant to § 553.22 in a new gravesite or niche, will be treated as a primarily eligible person for purposes of this part.

    (g) Notwithstanding any other section in this part, memorialization with an individual memorial marker, interment, or inurnment in the Army National Military Cemeteries is prohibited if there is a gravesite, niche, or individual memorial marker for the decedent in any other Government-operated cemetery or the Government has provided an individual grave marker, individual memorial marker or niche cover for placement in a private cemetery.

    § 553.12 Eligibility for interment in Arlington National Cemetery.

    Only those who qualify as a primarily eligible person or a derivatively eligible person are eligible for interment in Arlington National Cemetery, unless otherwise prohibited as provided for in §§ 553.19-553.20, provided that the last period of active duty of the service member or veteran ended with an honorable discharge.

    (a) Primarily eligible persons. The following are primarily eligible persons for purposes of interment:

    (1) Any service member who dies on active duty in the U.S. Armed Forces (except those service members serving on active duty for training only), if the General Courts Martial Convening Authority grants a certificate of honorable service.

    (2) Any veteran retired from a Reserve component who served a period of active duty (other than for training), is carried on the official retired list, and is entitled to receive military retired pay.

    (3) Any veteran retired from active military service and entitled to receive military retired pay.

    (4) Any veteran who received an honorable discharge from the Armed Forces prior to October 1, 1949, who was discharged for a permanent physical disability, who served on active duty (other than for training), and who would have been eligible for retirement under the provisions of 10 U.S.C. 1201 had the statute been in effect on the date of separation.

    (5) Any veteran awarded one of the following decorations:

    (i) Medal of Honor;

    (ii) Distinguished Service Cross, Air Force Cross, or Navy Cross;

    (iii) Distinguished Service Medal;

    (iv) Silver Star; or

    (v) Purple Heart.

    (6) Any veteran who served on active duty (other than active duty for training) and who held any of the following positions:

    (i) President or Vice President of the United States;

    (ii) Elected member of the U.S. Congress;

    (iii) Chief Justice of the Supreme Court of the United States or Associate Justice of the Supreme Court of the United States;

    (iv) A position listed, at the time the person held the position, in 5 U.S.C. 5312 or 5313 (Levels I and II of the Executive Schedule); or

    (v) Chief of Mission of a Category 4, 5, or 5+ post if the Department of State classified that post as a Category 4, 5, or 5+ post during the person's tenure as Chief of Mission.

    (7) Any former prisoner of war who, while a prisoner of war, served honorably in the active military service, and who died on or after November 30, 1993.

    (b) Derivatively eligible persons. The following individuals are derivatively eligible persons for purposes of interment who may be interred if space is available in the gravesite of the primarily eligible person:

    (1) The spouse of a primarily eligible person who is or will be interred in Arlington National Cemetery. A former spouse of a primarily eligible person is not eligible for interment in Arlington National Cemetery under this paragraph.

    (2) The spouse of an active duty service member or an eligible veteran, who was:

    (i) Lost or buried at sea, temporarily interred overseas due to action by the Government, or officially determined to be missing in action;

    (ii) Buried in a U.S. military cemetery maintained by the American Battle Monuments Commission; or

    (iii) Interred in Arlington National Cemetery as part of a group burial (the derivatively eligible spouse may not be buried in the group burial gravesite).

    (3) The parents of a minor child or a permanently dependent adult child, whose remains were interred in Arlington National Cemetery based on the eligibility of a parent at the time of the child's death, unless eligibility of the non-service connected parent is lost through divorce from the primarily eligible parent.

    (4) An honorably discharged veteran who does not qualify as a primarily eligible person, if the veteran will be buried in the same gravesite as an already interred primarily eligible person who is a close relative, where the interment meets the following conditions:

    (i) The veteran is without minor or unmarried adult dependent children;

    (ii) The veteran will not occupy space reserved for the spouse, a minor child, or a permanently dependent adult child;

    (iii) All other close relatives of the primarily eligible person concur with the interment of the veteran with the primarily eligible person by signing a notarized statement;

    (iv) The veteran's spouse waives any entitlement to interment in Arlington National Cemetery, where such entitlement might be based on the veteran's interment in Arlington National Cemetery. The Executive Director may set aside the spouse's waiver, provided space is available in the same gravesite, and all close relatives of the primarily eligible person concur;

    (v) Any cost of moving, recasketing, or revaulting the remains will be paid from private funds; and

    § 553.13 Eligibility for inurnment in Arlington National Cemetery Columbarium.

    The following persons are eligible for inurnment in the Arlington National Cemetery Columbarium, unless otherwise prohibited as provided for in §§ 553.19-553.20, provided that the last period of active duty of the service member or veteran ended with an honorable discharge.

    (a) Primarily eligible persons. The following are primarily eligible persons for purposes of inurnment:

    (1) Any person eligible for interment in Arlington National Cemetery, as provided for in § 553.12(a).

    (2) Any veteran who served on active duty other than active duty for training.

    (3) Any member of a Reserve component of the Armed Forces who dies while:

    (i) On active duty for training or performing full-time duty under title 32, United States Code;

    (ii) Performing authorized travel to or from such active duty for training or full-time duty;

    (iii) On authorized inactive-duty training, including training performed as a member of the Army National Guard of the United States or the Air National Guard of the United States; or

    (iv) Hospitalized or receiving treatment at the expense of the Government for an injury or disease incurred or contracted while on such active duty for training or full-time duty, traveling to or from such active duty for training or full-time duty, or on inactive-duty training.

    (4) Any member of the Reserve Officers' Training Corps of the United States, Army, Navy, or Air Force, whose death occurs while:

    (i) Attending an authorized training camp or cruise;

    (ii) Performing authorized travel to or from that camp or cruise; or

    (iii) Hospitalized or receiving treatment at the expense of the Government for injury or disease incurred or contracted while attending such camp or cruise or while traveling to or from such camp or cruise.

    (5) Any citizen of the United States who, during any war in which the United States has been or may hereafter be engaged, served in the armed forces of any government allied with the United States during that war, whose last service ended honorably by death or otherwise, and who was a citizen of the United States at the time of entry into that service and at the time of death.

    (6) Commissioned officers, United States Coast and Geodetic Survey (now National Oceanic and Atmospheric Administration) who die during or subsequent to the service specified in the following categories and whose last service terminated honorably:

    (i) Assignment to areas of immediate military hazard.

    (ii) Served in the Philippine Islands on December 7, 1941.

    (iii) Transferred to the Department of the Army or the Department of the Navy under certain statutes.

    (7) Any commissioned officer of the United States Public Health Service who served on full-time duty on or after July 29, 1945, if the service falls within the meaning of active duty for training as defined in 38 U.S.C. 101(22) or inactive duty training as defined in 38 U.S.C. 101(23) and whose death resulted from a disease or injury incurred or aggravated in line of duty. Also, any commissioned officer of the Regular or Reserve Corps of the Public Health Service who performed active service prior to July 29, 1945 in time of war; on detail for duty with the Armed Forces; or while the service was part of the military forces of the United States pursuant to Executive order of the President.

    (8) Any Active Duty Designee as defined in this part.

    (b) Derivatively eligible persons. Those connected to an individual described in paragraph (a) of this section through a relationship described in § 553.12(b). Such individuals may be inurned if space is available in the primarily eligible person's niche.

    § 553.14 Eligibility for interment of cremated remains in the Arlington National Cemetery Unmarked Area.

    (a) The cremated remains of any person eligible for interment in Arlington National Cemetery as described in § 553.12 may be interred in the designated Arlington National Cemetery Unmarked Area.

    (b) Cremated remains must be interred in a biodegradable container or placed directly into the ground without a container. Cremated remains are not authorized to be scattered at this site or at any location within Arlington National Cemetery.

    (c) There will be no headstone or marker for any person choosing this method of interment. A permanent register will be maintained by the Executive Director.

    (d) Consistent with the one-gravesite-per-family policy, once a person is interred in the Unmarked Area, any derivatively eligible persons and spouses must be interred in this manner. This includes spouses who are also primarily eligible persons. No additional gravesite, niche, or memorial marker in a memorial area will be authorized.

    § 553.15 Eligibility for group burial in Arlington National Cemetery.

    (a) The Executive Director may authorize a group burial in Arlington National Cemetery whenever several people, at least one of whom is an active duty service member, die during a military-related activity and not all remains can be individually identified.

    (b) Before authorizing a group burial that includes both United States and foreign decedents, the Executive Director will notify the Department of State and request that the Department of State notify the appropriate foreign embassy.

    § 553.16 Eligibility for memorialization in an Arlington National Cemetery memorial area.

    (a) With the authority granted by 38 U.S.C. 2409, a memorial marker may be placed in an Arlington National Cemetery memorial area to honor the memory of service members or veterans, who are eligible for interment under § 553.12(a) and:

    (1) Who are missing in action;

    (2) Whose remains have not been recovered or identified;

    (3) Whose remains were buried at sea, whether by the member's or veteran's own choice or otherwise;

    (4) Whose remains were donated to science; or

    (5) Whose remains were cremated and the cremated remains were scattered without interment or inurnment of any portion of those remains.

    (b) When the remains of a primarily eligible person are unavailable for one of the reasons listed in paragraph (a) of this section, and a derivatively eligible person who predeceased the primarily eligible person is already interred or inurned in Arlington National Cemetery, the primarily eligible person may be memorialized only on the existing headstone or on a replacement headstone, ordered with a new inscription. Consistent with the one-gravesite-per-family policy, a separate marker in a memorial area is not authorized.

    (c) When a memorial marker for a primarily eligible person is already in place in a memorial area, and a derivatively eligible person is subsequently interred or inurned in Arlington National Cemetery, an inscription memorializing the primarily eligible person will be placed on the new headstone or niche cover. Consistent with the one-gravesite-per-family policy, the memorial marker will then be removed from the memorial area.

    § 553.17 Arlington National Cemetery interment/inurnment agreement.

    (a) A derivatively eligible person who predeceases the primarily eligible person may be interred or inurned in Arlington National Cemetery only if the primarily eligible person agrees in writing to be interred in the same gravesite or inurned in the same niche at his or her time of need and that his or her estate shall pay for all expenses related to disinterment or disinurnment of the predeceased person from Arlington National Cemetery if the primarily eligible person is not interred or inurned as agreed.

    (b) If the primarily eligible person becomes ineligible for interment or inurnment in Arlington National Cemetery or the personal representative or primary next of kin decides that the primarily eligible person will be interred or inurned elsewhere, the remains of any predeceased person may be removed from Arlington National Cemetery at no cost to the Government.

    § 553.18 Eligibility for burial in U.S. Soldiers' and Airmen's Home National Cemetery.

    Only the residents of the Armed Forces Retirement Home are eligible for interment in the U.S. Soldiers' and Airmen's Home National Cemetery. Resident eligibility criteria for the Armed Forces Retirement Home is provided for at 24 U.S.C. 412.

    § 553.19 Ineligibility for interment, inurnment, or memorialization in an Army National Military Cemetery.

    The following persons are not eligible for interment, inurnment, or memorialization in an Army National Military Cemetery:

    (a) A father, mother, brother, sister, or in-law solely on the basis of his or her relationship to a primarily eligible person, even though the individual is:

    (1) Dependent on the primarily eligible person for support; or

    (2) A member of the primarily eligible person's household.

    (b) A person whose last period of service was not characterized as an honorable discharge (e.g., a separation or discharge under general but honorable conditions, other than honorable conditions, a bad conduct discharge, a dishonorable discharge, or a dismissal), regardless of whether the person:

    (1) Received any other veterans' benefits; or

    (2) Was treated at a Department of Veterans Affairs hospital or died in such a hospital.

    (c) A person who has volunteered for service with the U.S. Armed Forces, but has not yet entered on active duty.

    (d) A former spouse whose marriage to the primarily eligible person ended in divorce.

    (e) A spouse who predeceases the primarily eligible person and is interred or inurned in a location other than Arlington National Cemetery, and the primarily eligible person remarries.

    (f) A divorced spouse of a primarily eligible person.

    (g) Otherwise derivatively eligible persons, such as a spouse or minor child, if the primarily eligible person was not or will not be interred or inurned at Arlington National Cemetery.

    (h) A service member who dies while on active duty, if the first General Courts Martial Convening Authority in the service member's chain of command determines that there is clear and convincing evidence that the service member engaged in conduct that would have resulted in a separation or discharge not characterized as an honorable discharge (e.g., a separation or discharge under general but honorable conditions, other than honorable conditions, a bad conduct discharge, a dishonorable discharge, or a dismissal) being imposed, but for the death of the service member.

    (i) Animal remains. If animal remains are unintentionally commingled with human remains due to a natural disaster, unforeseen accident, act of war or terrorism, violent explosion, or similar incident, and such remains cannot be separated from the remains of an eligible person, then the remains may be interred or inurned with the eligible person, but the identity of the animal remains shall not be inscribed or identified on a niche, marker, headstone, or otherwise.

    § 553.20 Prohibition of interment, inurnment, or memorialization in an Army National Military Cemetery of persons who have committed certain crimes.

    (a) Prohibition. Notwithstanding §§ 553.12-553.16, 553.18, and 553.22, pursuant to 10 U.S.C. 985 and 38 U.S.C. 2411, the interment, inurnment, or memorialization in an Army National Military Cemetery of any of the following persons is prohibited:

    (1) Any person identified in writing to the Executive Director by the Attorney General of the United States, prior to his or her interment, inurnment, or memorialization, as a person who has been convicted of a Federal capital crime and whose conviction is final (other than a person whose sentence was commuted by the President).

    (2) Any person identified in writing to the Executive Director by an appropriate State official, prior to his or her interment, inurnment, or memorialization, as a person who has been convicted of a State capital crime and whose conviction is final (other than a person whose sentence was commuted by the Governor of the State).

    (3) Any person found under procedures specified in § 553.21 to have committed a Federal or State capital crime but who has not been convicted of such crime by reason of such person not being available for trial due to death or flight to avoid prosecution. Notice from officials is not required for this prohibition to apply.

    (4) Any person identified in writing to the Executive Director by the Attorney General of the United States or by an appropriate State official, prior to his or her interment, inurnment, or memorialization, as a person who has been convicted of a Federal or State crime causing the person to be a Tier III sex offender for purposes of the Sex Offender Registration and Notification Act, who for such crime is sentenced to a minimum of life imprisonment and whose conviction is final (other than a person whose sentence was commuted by the President or the Governor of a State, as the case may be).

    (b) Notice. The Executive Director is designated as the Secretary of the Army's representative authorized to receive from the appropriate Federal or State officials notification of conviction of capital crimes referred to in this section.

    (c) Confirmation of person's eligibility. (1) If notice has not been received, but the Executive Director has reason to believe that the person may have been convicted of a Federal capital crime or a State capital crime, the Executive Director shall seek written confirmation from:

    (i) The Attorney General of the United States, with respect to a suspected Federal capital crime; or

    (ii) An appropriate State official, with respect to a suspected State capital crime.

    (2) The Executive Director will defer the decision on whether to inter, inurn, or memorialize a decedent until a written response is received.

    § 553.21 Findings concerning the commission of certain crimes where a person has not been convicted due to death or flight to avoid prosecution.

    (a) Preliminary inquiry. If the Executive Director has reason to believe that a decedent may have committed a Federal capital crime or a State capital crime but has not been convicted of such crime by reason of such person not being available for trial due to death or flight to avoid prosecution, the Executive Director shall submit the issue to the Army General Counsel. The Army General Counsel or his or her designee shall initiate a preliminary inquiry seeking information from Federal, State, or local law enforcement officials, or other sources of potentially relevant information.

    (b) Decision after preliminary inquiry. If, after conducting the preliminary inquiry described in paragraph (a) of this section, the Army General Counsel or designee determines that credible evidence exists suggesting the decedent may have committed a Federal capital crime or State capital crime, then further proceedings under this section are warranted to determine whether the decedent committed such crime. Consequently the Army General Counsel or his or her designee shall present the personal representative with a written notification of such preliminary determination and a dated, written notice of the personal representative's procedural options.

    (c) Notice and procedural options. The notice of procedural options shall indicate that, within fifteen days, the personal representative may:

    (1) Request a hearing;

    (2) Withdraw the request for interment, inurnment, or memorialization; or

    (3) Do nothing, in which case the request for interment, inurnment, or memorialization will be considered to have been withdrawn.

    (d) Time computation. The fifteen-day time period begins on the calendar day immediately following the earlier of the day the notice of procedural options is delivered in person to the personal representative or is sent by U.S. registered mail or, if available, by electronic means to the personal representative. It ends at midnight on the fifteenth day. The period includes weekends and holidays.

    (e) Hearing. The purpose of the hearing is to allow the personal representative to present additional information regarding whether the decedent committed a Federal capital crime or a State capital crime. In lieu of making a personal appearance at the hearing, the personal representative may submit relevant documents for consideration.

    (1) If a hearing is requested, the Army General Counsel or his or her designee shall conduct the hearing.

    (2) The hearing shall be conducted in an informal manner.

    (3) The rules of evidence shall not apply.

    (4) The personal representative and witnesses may appear, at no expense to the Government, and shall, in the discretion of the Army General Counsel or his or her designee, testify under oath. Oaths must be administered by a person who possesses the legal authority to administer oaths.

    (5) The Army General Counsel or designee shall consider any and all relevant information obtained.

    (6) The hearing shall be appropriately recorded. Upon request, a copy of the record shall be provided to the personal representative.

    (f) Final determination. After considering the opinion of the Army General Counsel or his or her designee, and any additional information submitted by the personal representative, the Secretary of the Army or his or her designee shall determine the decedent's eligibility for interment, inurnment, or memorialization. This determination is final and not appealable.

    (1) The determination shall be based on evidence that supports or undermines a conclusion that the decedent's actions satisfied the elements of the crime as established by the law of the jurisdiction in which the decedent would have been prosecuted.

    (2) If an affirmative defense is offered by the decedent's personal representative, a determination as to whether the defense was met shall be made according to the law of the jurisdiction in which the decedent would have been prosecuted.

    (3) Mitigating evidence shall not be considered.

    (4) The opinion of the local, State, or Federal prosecutor as to whether he or she would have brought charges against the decedent had the decedent been available is relevant but not binding and shall be given no more weight than other facts presented.

    (g) Notice of decision. The Executive Director shall provide written notification of the Secretary's decision to the personal representative.

    § 553.22 Exceptions to policies for interment, inurnment, or memorialization at Arlington National Cemetery.

    (a) As a national military cemetery, eligibility standards for interment, inurnment, or memorialization are based on honorable military service. Exceptions to the eligibility standards for new graves are rarely granted. When granted, exceptions are for those persons who have made significant contributions that directly and substantially benefited the U.S. military.

    (b) Requests for an exception to the interment or inurnment eligibility policies shall be considered only after the individual's death.

    (c) Requests for an exception to the interment or inurnment eligibility policies shall be submitted to the Executive Director and shall include any documents required by the Executive Director.

    (d) The primary next of kin is responsible for providing and certifying the authenticity of all documents and swearing to the accuracy of the accounting provided to support the request for exception to the interment or inurnment eligibility policies.

    (e) Disapproved requests will be reconsidered only when the personal representative or next of kin submits new and substantive information not previously considered by the Secretary of the Army. Requests for reconsideration shall be submitted directly to the Executive Director. Requests for reconsideration not supported by new and substantive information will be denied by the Executive Director after review and advice from the Army General Counsel or his or her designee. The Executive Director shall notify the personal representative or next of kin of the decision of the reconsideration. The decision by the Secretary of the Army or the Executive Director, as the case may be, is final and not appealable.

    (f) Under no circumstances, will exceptions to policies be considered or granted for those individuals prohibited from interment by virtue of § 553.20 or § 553.21.

    § 553.23 Placement of cremated remains at Army National Military Cemeteries.

    All cremated remains shall be interred or inurned. The scattering of cremated remains and the burial of symbolic containers are prohibited in Army National Military Cemeteries.

    § 553.24 Subsequently recovered remains.

    Subsequently recovered identified remains of a decedent shall be reunited in one gravesite or urn, or as part of a group burial either in an Army National Military Cemetery or other cemetery. Subsequently recovered identified remains may also be interred in the Arlington National Cemetery Tomb of Remembrance. Unidentified remains (which may or may not be comingled) may also be interred in the Arlington National Cemetery Tomb of Remembrance.

    § 553.25 Disinterments and disinurnments of remains.

    (a) Interments and inurnments in Army National Military Cemeteries are considered permanent.

    (b) Requests for disinterment or disinurnment of individually buried or inurned remains are considered requests for exceptions to this policy, and must be addressed to the Executive Director for decision. The request must include:

    (1) A full statement of the reasons for the disinterment or disinurnment of the remains from the personal representative or primary next of kin who directed the original interment or inurnment if still living, or if not, the current personal representative or primary next of kin;

    (2) A notarized statement from each living close relative of the decedent that he or she does not object to the proposed disinterment or disinurnment; and

    (3) A notarized statement by a person who has personal knowledge of the decedent's relatives stating that the persons giving statements comprise all of the decedent's living close relatives.

    (4) An appropriate funding source for the disinterment or disinurnment, as disinterments and disinurnments of individually buried or inurned remains must be accomplished without expense to the Government.

    (c) The Executive Director shall carry out disinterments and disinurnments directed by a court of competent jurisdiction upon presentation of a lawful, original court order and after consulting with the Army General Counsel or his or her designee.

    (d) Remains interred in a group burial may be disinterred only if, after the completion of identification processing of any subsequently recovered remains, each decedent's remains have not been individually identified and it is determined that available technology is likely to assist in the identification process of the previously interred group remains. Requests for disinterment of group remains must be addressed to the Executive Director by the appropriate Military Department's Secretary or his or her designee for decision. The request must include:

    (1) A statement from the Joint Prisoner of War/Missing in Action Accounting Command certifying that subsequent to the interment or inurnment of the decedents, remains have been recovered from the site of the casualty incident, and that the remains of each individual U.S. citizen, legal resident, or former service member have not been previously identified from either the remains originally recovered or from the subsequently recovered portions.

    (2) Sufficient circumstantial and anatomical evidence from the Joint Prisoner of War/Missing in Action Accounting Command, which when combined with contemporary forensic or other scientific techniques, would lead to a high probability of individual identification of the interred group remains.

    (3) Copies of the Military Department's notification to all the living close relatives of the decedents advising them of the proposed disinterment.

    (4) A time period identified by the Joint Prisoner of War/Missing in Action Accounting Command during which it proposes to perform forensic or scientific techniques for individual identification processing.

    (5) An anticipated time period as to when the Joint Prisoner of War/Missing in Action Accounting Command will return any unidentified remains to Arlington National Cemetery or will notify the cemetery that individual identifications of the group remains are complete and no remains will be returned.

    (e) Disinterment or disinurnment is not permitted for the sole purpose of splitting remains or permanently keeping any portion of the remains in a location other than Arlington National Cemetery.

    (f) Disinterment of previously designated group remains for the sole purpose of individually segregating the group remains is not permitted unless the requirements of paragraph (d) of this section are met.

    § 553.26 Design of Government-furnished headstones, niche covers, and memorial markers.

    (a) Headstones and memorial markers shall be white marble in an upright slab design. Flat-type granite markers may be used, at the Executive Director's discretion, when the terrain or other obstruction precludes use of an upright marble headstone or memorial marker.

    (b) Niche covers shall be white marble.

    (c) The Executive Director shall approve the design of headstones and memorial markers erected for group burials, consistent with the policies of the Secretary of Veterans Affairs.

    § 553.27 Inscriptions on Government-furnished headstones, niche covers, and memorial markers.

    (a) Inscriptions on Government-furnished headstones, niche covers, and memorial markers will be made according to the policies and specifications of the Secretary of the Army, consistent with the policies of the Secretary of Veterans Affairs.

    (b) No grades, titles, or ranks other than military grades granted pursuant to title 10, United States Code, will be engraved on Government-furnished headstones, niche covers, and memorial markers. Honorary grades, titles, or ranks granted by States, governors, and others shall not be inscribed on headstones, niche covers, or memorial markers.

    (c) Memorial markers must include the words “In Memory of” preceding the inscription.

    (d) The words “In Memory of” shall not precede the inscription of a decedent whose remains are interred or inurned.

    § 553.28 Private headstones and markers.

    (a) Construction and installation of private headstones and markers in lieu of Government-furnished headstones and markers is permitted only in sections of Army National Military Cemeteries in which private memorials and markers were authorized as of January 1, 1947. These headstones or markers must be of simple design, dignified, and appropriate for a military cemetery as determined by the Executive Director.

    (b) The design and inscription of a private headstone or marker must be approved by the Executive Director prior to its construction and placement. All private headstones and markers will be designed to conform to the dimensions and profiles specified by the Executive Director and will be inscribed with the location of the gravesite.

    (c) Placement of a private headstone or marker is conditional upon the primary next of kin agreeing in writing to maintain it in a manner acceptable to the Government. Should the headstone or marker become unserviceable at any time and the primary next of kin fail to repair or replace it, or if the marker is not updated to reflect all persons buried in that gravesite within 6 months of the most recent burial, the Executive Director reserves the right to remove and dispose of the headstone or marker and replace it with a standard, Government-furnished headstone or marker.

    (d) The construction of a headstone or marker to span two gravesites will be permitted only in those sections in which headstones and markers are presently spanning two gravesites and only with the express understanding that in the event both gravesites are not utilized for burials, the headstone or marker will be relocated to the center of the occupied gravesite, if possible. Such relocation must be accomplished at no expense to the Government. The Executive Director reserves the right to remove and dispose of the headstone or marker and to mark the gravesite with a Government-furnished headstone or marker if the personal representative or primary next of kin fails to relocate the headstone or marker as requested by the Executive Director.

    (e) Separate headstones or markers may be constructed on a lot (two gravesites) for a service member and spouse, provided that each headstone or marker is set at the head of the gravesite after interment has been made.

    (f) At the time a headstone or marker is purchased, arrangements must be made with an appropriate commercial firm to ensure that additional inscriptions will be promptly inscribed following each succeeding interment in the gravesite. Foot markers must be authorized by the Executive Director and may only be authorized when there is no available space for an inscription on the front or rear of a private headstone.

    (g) Except as may be authorized for marking group burials, ledger monuments of freestanding cross design, narrow shafts, and mausoleums are prohibited.

    § 553.29 Permission to construct private headstones and markers.

    (a) Headstone firms must receive permission from the Executive Director to construct a private headstone or marker for use in Army National Military Cemeteries or to add an inscription to an existing headstone or marker in an Army National Military Cemetery.

    (b) Requests for permission must be submitted to the Executive Director and must include:

    (1) Written consent from the personal representative or primary next of kin;

    (2) Contact information for both the personal representative or primary next of kin and the headstone firm; and

    (3) A scale drawing (no less than 1:12) showing all dimensions, or a reproduction showing detailed specifications of design and proposed construction material, finishing, carving, lettering, exact inscription to appear on the headstone or marker, and a trademark or copyright designation.

    (c) The Army does not endorse headstone firms but grants permission for the construction of headstones or markers in individual cases.

    (d) When using sandblast equipment to add an inscription to an existing headstone or marker, headstone firms shall restore the surrounding grounds in a timely manner as determined by the Executive Director to the condition of the grounds before work began and at no expense to the Government.

    § 553.30 Inscriptions on private headstones and markers.

    An appropriate inscription for the decedent will be placed on the headstone or marker in accordance with the dimensions of the stone and arranged in such a manner as to enhance the appearance of the stone. Additional inscriptions may be inscribed following each succeeding interment in the gravesite. All inscriptions will be in accordance with policies established by the Executive Director.

    § 553.31 Memorial and commemorative monuments (other than private headstones or markers).

    The placement of memorials or commemorative monuments in Arlington National Cemetery will be carried out in accordance with 38 U.S.C. 2409(b).

    § 553.32 Conduct of memorial services and ceremonies.

    (a) The Executive Director shall ensure the sanctity of public and private memorial and ceremonial events.

    (b) All memorial services and ceremonies within Army National Military Cemeteries, other than official ceremonies, shall be purely memorial in purpose and may be dedicated only to:

    (1) The memory of all those interred, inurned, or memorialized in Army National Military Cemeteries;

    (2) The memory of all those who died in the military service of the United States while serving during a particular conflict or while serving in a particular military unit or units; or

    (3) The memory of the individual or individuals to be interred, inurned, or memorialized at the particular site at which the service or ceremony is held.

    (c) Memorial services and ceremonies at Army National Military Cemeteries will not include partisan political activities.

    (d) Private memorial services may be closed to the media and public as determined by the decedent's primary next of kin.

    (e) Public memorial services and public wreath-laying ceremonies shall be open to all members of the public to observe.

    § 553.33 Visitors rules for Army National Military Cemeteries.

    (a) Visiting hours. Visiting hours shall be established by the Executive Director and posted in conspicuous places. No visitor is permitted to enter or remain in an Army National Military Cemetery outside the established visiting hours.

    (b) Destruction or removal of property. No person shall destroy, damage, mutilate, alter, or remove any monument, gravestone, niche cover, structure, tree, shrub, plant, or other property located within an Army National Military Cemetery.

    (c) Conduct within Army National Military Cemeteries. Army National Military Cemeteries are a national shrine to the honored dead of the Armed Forces, and certain acts and activities, which may be appropriate elsewhere, are not appropriate in Army National Military Cemeteries. All visitors, including persons attending or taking part in memorial services and ceremonies, shall observe proper standards of decorum and decency while in an Army National Military Cemetery. Specifically, no person shall:

    (1) Conduct any memorial service or ceremony within an Army National Military Cemetery without the prior approval of the Executive Director.

    (2) Engage in demonstrations prohibited by 38 U.S.C. 2413.

    (3) Engage in any orations, speeches, or similar conduct to assembled groups of people, unless such actions are part of a memorial service or ceremony authorized by the Executive Director.

    (4) Display any placards, banners, flags, or similar devices within an Army National Military Cemetery, unless first approved by the Executive Director for use in an authorized memorial service or ceremony. This rule does not apply to clothing worn by visitors.

    (5) Distribute any handbill, pamphlet, leaflet, or other written or printed matter within an Army National Military Cemetery, except a program approved by the Executive Director to be provided to attendees of an authorized memorial service or ceremony.

    (6) Bring a dog, cat, or other animal (other than a service animal or military working dog) within an Army National Military Cemetery. This prohibition does not apply to persons living in quarters located on the grounds of the Army National Military Cemeteries.

    (7) Use the cemetery grounds for recreational activities (e.g., physical exercise, running, jogging, sports, or picnics).

    (8) Ride a bicycle or similar conveyance in an Army National Military Cemetery, except with a proper pass issued by the Executive Director to visit a gravesite or niche. An individual visiting a relative's gravesite or niche may be issued a temporary pass by the Executive Director to proceed directly to and from the gravesite or niche on a bicycle or similar vehicle or conveyance.

    (9) Operate a musical instrument, a loudspeaker, or an audio device without a headset within an Army National Military Cemetery.

    (10) Drive any motor vehicle within an Army National Military Cemetery in excess of the posted speed limit.

    (11) Park any motor vehicle in any area of an Army National Military Cemetery designated as a no-parking area.

    (12) Leave any vehicle in the Arlington National Cemetery Visitors' Center parking area or Soldiers' and Airmen's Home National Cemetery visitors' parking area more than thirty minutes outside of established visiting hours or anywhere else in an Army National Military Cemetery outside of established visiting hours.

    (13) Consume or serve alcoholic beverages without prior written permission from the Executive Director.

    (14) Possess firearms without prior written permission from the Executive Director. This prohibition does not apply to law enforcement and military personnel in the performance of their official duties. In accordance with locally established policy, military and law enforcement personnel may be required to obtain advance permission from the Executive Director of the Army National Military Cemeteries prior to possessing firearms on the property of an Army National Military Cemetery.

    (15) Deposit or throw litter or trash on the grounds of the Army National Military Cemeteries.

    (16) Engage in any disrespectful or disorderly conduct within an Army National Military Cemetery.

    (d) Vehicular traffic. All visitors, including persons attending or taking part in memorial services and ceremonies, will observe the following rules concerning motor vehicle traffic within Arlington National Cemetery:

    (1) Visitors arriving by car and not entitled to a vehicle pass pursuant to paragraph (d)(2) of this section are required to park their vehicles in the Visitors' Center parking area or at a location outside of the cemetery.

    (2) Only the following categories of vehicles may be permitted access to Arlington National Cemetery roadways and issued a permanent or temporary pass from the Executive Director:

    (i) Official Government vehicles being used on official Government business.

    (ii) Vehicles carrying persons on official Cemetery business.

    (iii) Vehicles forming part of an authorized funeral procession and authorized to be part of that procession.

    (iv) Vehicles carrying persons visiting the Arlington National Cemetery gravesites, niches, or memorial areas of relatives or loved ones interred, inurned, or memorialized within Arlington National Cemetery.

    (v) Arlington National Cemetery and National Park Service maintenance vehicles.

    (vi) Vehicles of contractors who are authorized to perform work within Arlington National Cemetery.

    (vii) Concessionaire tour buses authorized by the Executive Director to operate in Arlington National Cemetery.

    (viii) Vehicles of employees of ANMC as authorized by the Executive Director.

    § 553.34 Soliciting and vending.

    The display or distribution of commercial advertising to or solicitation of business from the public is strictly prohibited within an Army National Military Cemetery, except as authorized by the Executive Director.

    § 553.35 Media.

    All officials and staff of the media are subject to the Visitors Rules enumerated in § 553.33 and shall comply with the Department of the Army's media policy.

    [FR Doc. 2016-23087 Filed 9-23-16; 8:45 am] BILLING CODE 5001-03-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0894] Drawbridge Operation Regulation; Sacramento River, Sacramento, CA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Tower Drawbridge across the Sacramento River, mile 59.0, at Sacramento, CA. The deviation is necessary to allow the community to participate in the Juvenile Diabetes Research Foundation (JDRF) One Walk event. This deviation allows the bridge to remain in the closed-to-navigation position during the deviation period.

    DATES:

    This deviation is effective from 10 a.m. to 11 a.m. on October 2, 2016.

    ADDRESSES:

    The docket for this deviation, [USCG-2016-0894], is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email David H. Sulouff, Chief, Bridge Section, Eleventh Coast Guard District; telephone 510-437-3516, email [email protected]

    SUPPLEMENTARY INFORMATION:

    California Department of Transportation has requested a temporary change to the operation of the Tower Drawbridge, mile 59.0, over Sacramento River, at Sacramento, CA. The vertical lift bridge navigation span provides a vertical clearance of 30 feet above Mean High Water in the closed-to-navigation position. The draw operates as required by 33 CFR 117.189(a). Navigation on the waterway is commercial and recreational.

    The drawspan will be secured in the closed-to-navigation position from 10 a.m. to 11 a.m. on October 2, 2016, to allow the community to participate in the JDRF One Walk event. This temporary deviation has been coordinated with the waterway users. No objections to the proposed temporary deviation were raised.

    Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will not be able to open for emergencies and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the 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.

    Dated: September 21, 2016. D.H. Sulouff, District Bridge Chief, Eleventh Coast Guard District.
    [FR Doc. 2016-23211 Filed 9-23-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0892] Drawbridge Operation Regulation; Rancocas Creek, Burlington, NJ AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulations.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Riverside-Delanco/S.R. 543 Bridge across the Rancocas Creek, mile 1.3, at Burlington, NJ. The deviation is necessary to facilitate repairs to the bridge fender system. This deviation allows the bridge to remain in the closed-to-navigation position.

    DATES:

    The deviation is effective from 7 a.m. on Monday, October 3, 2016, to 3:30 p.m. on Monday, October 31, 2016.

    ADDRESSES:

    The docket for this deviation, [USCG-2016-0892] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Mr. Mickey Sanders, Bridge Administration Branch Fifth District, Coast Guard, telephone 757-398-6587, email [email protected].

    SUPPLEMENTARY INFORMATION:

    The Burlington County Bridge Commission, who owns and operates the Riverside-Delanco/S.R. 543 Bridge, across the Rancocas Creek, mile 1.3, at Burlington, NJ, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.745, to repair the bridge fender system.

    Under this temporary deviation, the bridge will remain in the closed-to-navigation position and will open on signal, if at least one hour notice is given, Monday through Friday, from 7 a.m. to 3:30 p.m., from October 3, 2016, through October 31, 2016. At all other times the bridge will operate per 33 CFR 117.745(b). The bridge is a swing bridge and has a vertical clearance in the closed-to-navigation position of 4 feet above mean high water.

    Rancocas Creek is mostly used by recreational vessels. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway in publishing this temporary deviation.

    Vessels able to pass through the bridge in the closed position may do so at any time. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels unable to pass through the bridge in the closed position. The Coast Guard will also inform the users of the waterway through our Local Notice and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the 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.

    Dated: September 21, 2016. Hal R. Pitts, Bridge Program Manager, Fifth Coast Guard District.
    [FR Doc. 2016-23090 Filed 9-23-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-0885] RIN 1625-AA00 Safety Zone; Arkansas River, Little Rock, AR AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone for all waters of the Arkansas River beginning at mile marker 118.6 and ending at mile marker 119.6. The safety zone is necessary to protect persons, property, and infrastructure from potential damage and safety hazards associated with the demolition of the Broadway Bridge. This rulemaking would impose a speed restriction and prohibit persons and vessels from entering the safety zone area during certain operations unless authorized by the Captain of the Port Memphis or a designated representative.

    DATES:

    This rule is effective from 7 a.m. on October 1, 2016 through 10 p.m. on November 1, 2016.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0885 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Petty Officer Todd Manow, Sector Lower Mississippi River Prevention Department, U.S. Coast Guard; telephone 901-521-4813, email [email protected]

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port 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

    The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule. Although the Coast Guard received initial notification of this planned bridge demolition in February of the previous year, the dates of each phase of demolition were not finalized and submitted until August 29, 2016. Immediate action is needed to respond to potential safety hazards related to a bridge demolition on or over this navigable waterway. It is impracticable and contrary to the public interest to publish an NPRM because we must establish this safety zone by October 1, 2016.

    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be contrary to public interest because immediate action is needed to respond to the potential safety hazards associated with demolition of the Broadway Bridge.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP has determined that potential hazards associated with a bridge demolition starting October 1, 2016 will be a safety concern for anyone desiring to transit this section of the Arkansas River. This rule is needed to protect personnel, vessels, and infrastructure in the navigable waters within the safety zone while bridge demolition is occurring.

    IV. Discussion of the Rule

    This rule establishes a safety zone from 7 a.m. on October 1, 2016 through 10 p.m. on November 1, 2016. The safety zone will cover all navigable waters within one half mile on either side of the Broadway Bridge. Vessels will be prohibited from entering the safety zone from 30 minutes prior to, until 30 minutes after, any blasting or large-scale removal operation that takes place on the Broadway Bridge; designated representatives will be on-scene to stop or reroute traffic during these evolutions. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. During the entire effective period of this safety zone, regardless of operations, all vessel traffic will be required to maintain slowest speeds for safe navigation; marker buoys will be placed informing waterway users of a no-wake zone. This safety zone is intended to protect personnel, vessels, and infrastructure in these navigable waters while the bridge is being demolished.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the size and location of the safety zone, a one-mile section of the Arkansas River in the vicinity of Little Rock, AR. Although in effect from October 1, 2016 until November 1, 2016, traffic will only be excluded from this safety zone from 30 minutes before until 30 minutes after any blasting or large-scale removal operation that takes place on the Broadway Bridge. During periods of non-exclusion, vessel traffic will be allowed to transit at slowest speeds for safe navigation through this safety zone. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.

    B. Impact on Small Entities

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

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a month-long safety zone limiting vessel speed and intermittently prohibiting entry into a one-mile area of the Arkansas River adjacent to the Broadway Bridge during demolition operations. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 165

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

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

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

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

    2. Temporary §  165.35T08-0885 is added to read as follows:
    §  165.35T08-0885 Safety Zone; Arkansas River; Little Rock, AR.

    (a) Location. All waters of the Arkansas River beginning at mile marker 118.6 and ending at mile marker 119.6 in the vicinity of Little Rock, AR.

    (b) Periods of enforcement. This temporary safety zone will be enforced from 7 a.m. on October 1, 2016 through 10 p.m. on November 1, 2016.

    (c) Regulations. (1) In accordance with the general regulations in §  165.23 of this part, entry into this area during blasting or large-scale removal operations is prohibited unless authorized by the COTP or a designated representative. All persons and vessels permitted to deviate from the safety zone requirements, as well as enter the restricted area must transit at the slowest safe speed and comply with all lawful directions issued by the COTP or a designated representative.

    (2) Buoys marked “No-Wake” will be placed along the navigation channel while this safety zone is in effect.

    (3) Persons or vessels requiring entry into or passage through this safety zone during prohibited entry periods must request permission from the COTP or a designated representative. They may be contacted on VHF Channel 16 or at 1-800-777-2784.

    (4) A “designated representative” of the COTP is any Coast Guard commissioned, warrant, or petty officer, or a Federal, State, or local law enforcement officer designated by the COTP to act on his behalf.

    (d) Informational broadcasts. The COTP Memphis or a designated representative will inform the public through broadcast notices to mariners of the enforcement period for the safety zone, as well as any changes in the dates and times of enforcement.

    Dated: September 20, 2016. J.L. Adams, Lieutenant Commander, U.S. Coast Guard, Acting Captain of the Port, Memphis, Tennessee.
    [FR Doc. 2016-23122 Filed 9-23-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF AGRICULTURE Forest Service 36 CFR Part 223 RIN 0596-AD00 Sale and Disposal of National Forest System Timber; Forest Products for Traditional and Cultural Purposes AGENCY:

    Forest Service, USDA.

    ACTION:

    Final rule.

    SUMMARY:

    The USDA Forest Service is implementing regulations under the Food, Conservation, and Energy Act of 2008 (hereinafter the “2008 Farm Bill”). This rule provides for the provision of trees, portions of trees, or forest products from National Forest System lands, free of charge, to federally recognized Indian tribes (Indian tribes) for traditional and cultural purposes. This rule implements section 8105 of the 2008 Farm Bill.

    DATES:

    This rule is effective October 26, 2016.

    ADDRESSES:

    Information on this final rule may be obtained via written request addressed to Director, Forest Management Staff, USDA Forest Service, Mail Stop 1103, 1400 Independence Avenue SW., Washington, DC 20250 or by email to [email protected] The public may inspect comments previously received at the Office of the Director, Forest Management Staff, Sidney Yates Building, Third Floor SW Wing, 201 14th Street SW., Washington, DC or via the world wide web/Internet at http://www.fs.fed.us/forestmanagement/traditional_cultural/index.shtml. Visitors are encouraged to call ahead to 202-205-1766 to facilitate entry to the building.

    FOR FURTHER INFORMATION CONTACT:

    Joe Reddan, Assistant Director, Forest Products, 202-557-6591 or Sharon Nygaard-Scott, Forest Service, Forest Management Staff, 202-205-1766, during normal business hours. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    I. Background

    The Forest Service is issuing this final rule to implement section 8105 of the 2008 Farm Bill (section 8105). Section 8105 has also been codified in Title 25 of the U.S. Code, chapter 32A—Cultural and Heritage Cooperation Authority (25 U.S.C. 3055—Forest Products for Traditional and Cultural Purposes). Subject to certain statutory limitations, section 8105 allows the Secretary of Agriculture to provide Indian tribes with trees, portions of trees, or forest products for traditional and cultural purposes. In this preamble to the final rule, the term “forest products” is used as a shorthand for “trees, portions of trees, or forest products”. Specifically, section 8105(a) provides that the Secretary may provide free of charge to Indian tribes any trees, portions of trees, or forest products from National Forest System land for traditional and cultural purposes.

    However, pursuant to section 8105(b), Indian tribes are prohibited from using any trees, portions of trees, or forest products provided under section 8105(a) for commercial purposes. While the 2008 Farm Bill does not define commercial purposes, it does define Indian tribe and traditional and cultural purpose. Section 8102(5) defines Indian tribe as any Indian or Alaska Native tribe, band, nation, pueblo, village, or other community the name of which is included on a list published by the Secretary of the Interior pursuant to section 104 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a-1). In addition, per section 8102(9), traditional and cultural purpose, with respect to a definable use, area, or practice, means that the use, area, or practice is identified by an Indian tribe as traditional or cultural because of the long-established significance or ceremonial nature of the use, area, or practice to the Indian tribe.

    On December 2, 2009, the Forest Service published an Interim Directive (ID) to the Forest Service Handbook (FSH) 2409.18 to implement section 8105 of the 2008 Farm Bill. The ID was reissued, without change, four times (effective March 8, 2011 (ID 2409.18-2011-1), June 7, 2012 (ID 2409.18-2012-2), December 6, 2013 (ID 2409.18-2013-3), and May 14, 2015 (ID 2409.18-2015-1), and remains in effect until November 14, 2016. This final rule will replace the Interim Directive, which will be entered in FSH 2409.18, chapter 80, section 82.5.

    The proposed rule was published in the Federal Register on July 31, 2014 (79 FR 44327), and a comment period ensued over a period of 60 days. The Forest Service received 12 written comments through 10 letters, and all were considered in the development of this final rule.

    This rule establishes Forest Service policy for providing Indian tribes with trees, portions of trees, or forest products for traditional and cultural purposes. Based on the comments received on the ID during formal government-to-government consultation, and those received during the proposed rulemaking, as well as the Agency's experience using the ID to implement section 8105 over the last 7 years, the Agency is now publishing this final rule.

    This final rule adds § 223.15 to 36 CFR part 223, subpart A. Section 223.15(a) authorizes Regional Foresters or designated Forest Officers to provide trees, portions of trees, or forest products to Indian tribes free of charge for traditional and cultural purposes. Section 223.15(b) restates the 2008 Farm Bill's statutory definitions of “Indian tribe” and “traditional and cultural purpose,” and includes the Forest Services' regulatory definition of “tribal officials.”

    Sections 223.15(c) and (d) describe who can request trees, portions of trees, or forest products for traditional and cultural purposes, and where those requests should be directed. Tribal officials should submit requests for trees, portions of trees, or forest products to their local Forest Service District Ranger's office for routing to the appropriate designated authority. In addition, tribal officials are encouraged to explain their requests to the Regional Forester or designated Forest Officer, and if necessary, how the request fits a traditional and cultural purpose.

    A designated Forest Officer is an individual whom the Regional Forester has granted written authority to provide products under § 223.15. Currently, there is no limitation on the number of requests or authorizations per unit of a forest product or the number of requests or authorizations per Indian tribe. There is currently no limitation on the amount of trees, portions of trees, or forest products that can be requested at any one time. However, Forest Officers cannot grant materials in excess of the value limitations at § 223.15(e) in any given fiscal year.

    Section 223.15(f) explains that the Forest Service may condition or deny requests for trees, portions of trees, or forest products under § 223.15. Finally, § 223.15(g) provides that all decisions made under § 223.15 must comply with the National Forest Management Act, relevant land management plans, the National Environmental Policy Act, the Endangered Species Act, and all other applicable laws and regulations, and are subject to tribal treaty and other reserved rights and the savings provisions of the Cultural and Heritage Cooperation Authority (25 U.S.C. 8107(b)). The Forest Service will do its best to process requests received in a reasonable period of time, in light of these statutory and regulatory requirements.

    II. Formal Government-to-Government Consultation

    After issuance of the December 2, 2009, Interim Directive (ID 2409.18-2009-2), the Forest Service formally entered into consultation with Indian tribes, with the Regional Foresters extending invitations to Indian tribes by May 1, 2010. This consultation was conducted under Executive Order (EO) 13175, Consultation and Coordination with Indian Tribal Governments. Indian tribes were provided the ID to FSH 2409.18, and were invited to consult on proposed changes to 36 CFR part 223. Government-to-government consultation occurred over a period of at least 120 days, through September 1, 2010.

    Regional Foresters were directed to invite all federally recognized Indian tribes in their Region to consult. In addition, they were directed to invite any federally recognized Indian tribes who have expressed a historical connection to National Forest System lands in their Region, even if they no longer reside there. To make the consultation more effective, the Forest Service provided Indian tribes with a question and answer document describing the Interim Directive and Forest Services' intent to implement section 8105 of the 2008 Farm Bill through proposed changes to 36 CFR part 223. Recommendations from the Indian tribes have been incorporated, as appropriate, into this final rule.

    III. Summary of Comments and Responses

    The Forest Service received 12 comments in response to the proposed rule, several of which were similar in scope and nature. A summary of the comments and the Agency's responses and actions taken to the comments follow.

    Savings Provisions comment: Three commenters expressed concern that the proposed rule did not incorporate the savings provisions at 25 U.S.C. 3057(b), which protect existing tribal treaty and other reserved rights, as well as agreements between the Forest Service and an Indian tribe. Section 8105 has been codified in 25 U.S.C. 3055—Forest Products for Traditional and Cultural Purposes. The savings provisions at 25 U.S.C. 3057(b) apply to forest products for traditional and cultural purposes. These savings provisions state that:

    Nothing in the chapter—

    (1) diminishes or expands the trust responsibility of the United States to Indian tribes, or any legal obligation or remedy resulting from that responsibility;

    (2) alters, abridges, repeals, or affects any valid agreement between the Forest Service and an Indian tribe;

    (3) alters, abridges, diminishes, repeals, or affects any reserved or other right of an Indian tribe; or

    (4) alters, abridges, diminishes, repeals, or affects any other valid existing right relating to National Forest System land or other public land.

    Savings Provisions response: The Forest Service has revised § 223.15(g) of the final rule to incorporate the savings provisions codified at 25 U.S.C. 3057(b). The revised § 223.15(g) states: All decisions made under this section must comply with the National Forest Management Act, relevant land management plans, the National Environmental Policy Act, the Endangered Species Act, all other applicable laws and regulations, and are subject to tribal treaty and other reserved rights and the savings provisions of the Cultural and Heritage Cooperation Authority (25 U.S.C. 3057(b)).

    Additionally, the authority citation under part 223 now includes references to both 25 U.S.C. 3055 and 3057.

    Prioritized Use and Access comment: One commenter proposed that the collection of forest products for traditional and cultural purposes be prioritized over other uses and that traditional gathering areas be closed to other uses. The commenter indicated that frequently the collection of forest materials occurs immediately preceding a traditional or religious ceremony and requested assurance that access to the traditional resources be prioritized and allowed, regardless of the situation or season.

    Prioritized Use and Access response: Authorized timeframes for gathering, prioritization over other uses and needs, and access to specific gathering areas may vary by request. The Forest Service is responsible for balancing requests made under section 8105 of the 2008 Farm Bill with other planned, possible, and mandated uses in accordance with its mandate to manage the national forests for multiple uses (16 U.S.C. 528-531). This rule provides one path for collection of forest products, but prioritization of the various uses and purposes of forest products and access to National Forest System lands are outside the scope of this rule. Instead, the Forest Service determines how to balance competing demands for forest products and land use when revising or amending land management plans using the National Forest System Land Management Planning process (36 CFR part 219). The planning process requires responsible officials to actively engage stakeholders, the public, and federally recognized Indian tribes using collaborative processes where feasible and appropriate (36 CFR 219.4). Proposed individual actions and projects subject to the NEPA requirements also require opportunities for public participation and comment (36 CFR 220.4).

    Indian tribes are encouraged to participate in these processes and to work with and regularly communicate to local Forest Service Officials the location of forest products used for traditional and cultural purposes. Local Forest Service Officers will then be aware of potential gathering areas and times when planning projects to mitigate potential conflicting activities and requests. Information regarding the locations of resources shared with Forest Service officials are protected from sharing by the Prohibition on Disclosure (25 U.S.C. 3056). Assessment and determination for priority of use and access to areas will be made at the Regional, National Forest, or local Ranger District levels as appropriate based on local considerations, land management plans, needs, and consultation with local Indian tribes.

    This rule does not designate gathering areas. Section 223.15(f) of the rule authorizes, however, denials of or the placing of conditions on requests for access to gather. The reasons for the denials or conditions include, but are not limited to:

    (1) Protecting public health and safety;

    (2) Preventing interference with Forest Service and/or commercial operations;

    (3) Complying with Federal and State laws and regulations;

    (4) Ensuring sustainability; or

    (5) Otherwise protecting National Forest System land and resources.

    Adoption of Region 5 Policy as the National Rule comment: One commenter represents an Indian Tribe within the State of California that has been using the existing Region 5 Traditional Gathering Policy. The Indian tribe is satisfied with the policy and has recommended that this policy be used as a model and applied nationwide. The policy referenced by the commenter exists as a Regional Supplement to the Forest Service Manual (FS Region 5, FSM 1500, ch. 1560, Amendment No: 1500-2007-1) which sets out direction on traditional gathering policy within the Region to promote consistency between Forest Service and Bureau of Land Management in collaboration with local tribal communities.

    Adoption of Region 5 Policy as the National Rule response: Regional Forest Service and tribal interests, needs, and agreements may vary by location, tradition, culture, and practice. Forest Service Regions have the opportunity to supplement this rule, consistent with the policy established herein, for best use in their area of administration. The Region 5 policy was developed through collaboration and interests specific to parties in the Region 5 area. Forest Service Region 9 also has a document for use that includes considerations and direction for application within FS Region 9 (Tribal Relations Strategic Framework for the Eastern Region, Northeastern Area State & Private Forestry, and Northern Research Station—2015). While the sharing of direction and guidance on this topic is appropriate between Regions, the Regions may implement this rule through supplements that are consistent with the rule and that meet the particular needs of a Region based on applicable laws, tribal treaty or other reserved rights, the parties involved, and other local needs. Any new supplements must be consistent with the rule. Any existing Regional supplements or policies should continue to be implemented in accordance with § 223.15(g). The Region 5 Traditional Gathering Policy will not be adopted as Agency-wide direction in this rule.

    Requests by Individuals comment: One commenter sought clarification as to whether this rule allows individual tribal members to request trees, portions of trees, or forest products for traditional and cultural purposes, or whether such requests must be submitted by tribal officials. Section 8105 of the 2008 Farm Bill states, “the Secretary may provide free of charge to Indian tribes any trees, portions of trees, or forest products from National Forest System land for traditional and cultural purposes.” Section 8102 expressly defines the terms “Indian” and “Indian Tribe” separately. The term “Indian” references an individual member of an Indian tribe. As defined in section 8102, the term “Indian Tribe” references a “tribe, band, nation, pueblo, village, or other community” which is included on the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a-1).

    Requests by Individuals response: For purposes of this rule, authorization is limited to government (Forest Service)-to-government (Indian tribe), rather than government-to-individual, provision of trees, portions of trees, or forest products. Tribal officials should submit requests on behalf of the Indian tribe. Individual members of federally recognized Indian tribes should coordinate requests through their tribal officials. Individual members of federally recognized Indian tribes may also use existing provisions at 36 CFR part 223, subpart A, which authorize free-use of trees, portions of trees, or forest products to individuals, subject to limitations or circumstances as stated in the regulations.

    Scale of detail for requested material comment: One commenter sought clarification as to whether requests are required to include details as to the type and quantity of material being requested. The 2008 Farm Bill does not specify a process for requesting materials authorized within section 8105.

    Scale of detail for requested material response: It is important that the requests for trees, portions of trees, and forest products under this rule be complete, in order to prevent any misunderstandings, or delays in processing, and to provide for efficient field administration and gathering under authorized permits. The level of detail required for requests may vary by location and type of material due to the level of sensitivity and abundance of the item being requested, to insure that Forest Service Officers can maintain accountability and sustainable management of the forest products. Additionally, tribal officials are encouraged to explain their requests to Regional Foresters or designated Forest Service Officers, and if necessary, how the request fits a traditional and cultural purpose. Requests which do not include sufficient information for a Forest Service Officer to make an assessment that the request fits a traditional and cultural purpose and does not conflict with existing plans, or maintain sustainable levels and management of the material(s) requested, may be delayed or denied.

    Levels for Authorizing Requests comment: One commenter requested that the delegations of authority limitations within the proposed rule (36 CFR 223.15(e)) be removed.

    Levels for Authorizing Requests response: The levels set in the proposed rule have not been removed or modified for the final rule. “Limitations” as specified in this final rule pertain to the level of delegation authorized for approving free use requests as specified in 36 CFR 223.8. The levels proposed in this rule (§ 223.15) are an increase from those which apply to other activities specified in § 223.8. There is no limitation on the number of requests that can be made or authorized per Indian tribe. These levels for delegating authority of approval for requests made under this rule are necessary to ensure consistency with the levels of accountability assigned to each Forest Service Officer for management of National Forest System lands and resources within their respective areas of responsibility.

    The value limitations do not limit the amount of trees, portions of trees, or forest products that Indian tribes may request through this rule. If an Indian tribe makes a request that has a higher value than the maximum which can be authorized by a local official, then the request will be forwarded to a Forest Service Officer who has the authority to grant the request. Pursuant to this rule, if the value of the forest products requested is greater than the value that may be locally granted, the request will be forwarded as follows—District Ranger (value limitation $25,000), Forest Supervisor, (value limitation $50,000), and Regional Forester (value limitation $100,000). Requests that exceed $100,000 in value will be reviewed and approved by the Chief of the Forest Service.

    Definition of commercial comment: One commenter requested clarification as to the definition for the term “commercial purposes”. Although the term “commercial purposes” was used in the 2008 Farm Bill (section 8105), a definition of the term was not included in the definitions at section 8102.

    Definition of commercial response: In consideration of this request for clarification of the definition of the term “commercial purposes”, the Agency reviewed a number of existing definitions, consulted existing Regional policy, and considered defining the term within the final regulatory text. The Agency has decided, however, not to define the term “commercial purposes” in this rule for the reasons discussed herin.

    The term “commercial” is used in other subparts of 36 CFR part 223 without definition. The need to define this term, and a definition appropriate for application and administration, may vary by location and the accepted traditional and cultural practices of the Indian tribe(s) involved. In particular, Regional Forest Service representatives expressed concern that defining the term in the body of the rule could preclude varying levels of locally accepted traditional and cultural practices. Regional Representatives requested that we leave a definition of this term to Regional discretion in order to best suit the partnerships and agreements developed in consultation with Indian tribes and used within the regions. Regions implementing this rule under the existing interim directive and supplemental Regional guidance, specific for the region, have not experienced issues to this point regarding what is or is not deemed commercial for purposes of this rule.

    Based on the lack of a definition for “commercial purposes” in the 2008 Farm Bill, regular and undefined use of the term in other Forest Service documents, and Forest Service Regional Staff's request that the term be left undefined, this final rule does not include a definition within the regulatory text.

    Traditional barter and trade comment: One commenter requested clarification of whether barter and trade is permitted for materials obtained through this rule. Specifically, whether an Indian tribe may barter or trade materials obtained pursuant to this rule as a means of recouping the costs an Indian tribe incurs for planning, gathering, and processing such materials.

    Traditional barter and trade response: Barter and trade is not expressly addressed in the regulatory text for this rule.

    This rule derives from the authority and prohibitions within section 8105 of the 2008 Farm Bill. The Forest Service is authorized to provide trees, portions of trees, or forest products free-of-charge from National Forest System land to Indian tribes for traditional and cultural purposes, except when those purposes involve commercial use. According to the definition in section 8102 of the 2008 Farm Bill, the term “traditional and cultural purpose,” with respect to a definable use, area, or practice, means that the use, area, or practice is identified by an Indian tribe as traditional or cultural because of the long-established significance or ceremonial nature of the use, area, or practice to the Indian tribe. Barter and trade of materials obtained through requests made under this rule, which meet the definition for a traditional and cultural purpose and are not considered to be commercial, may be acceptable. Tribal officials are encouraged to explain their requests to Regional Foresters or designated Forest Service Officers and, if necessary, describe how the request fits a traditional and cultural purpose. Requests that do not include enough information for a Forest Service Officer to make a reasonable assessment that the request fits a traditional and cultural purpose and will not be used for commercial purposes may be denied.

    Similar to the term “commercial”, the need to address barter and trade may vary by location and the accepted traditional and cultural practices of the Indian tribe(s) involved. Regions implementing this rule under the existing interim directive and supplemental Regional guidance, specific for the region, have not experienced issues to this point regarding barter and trade for purposes of this rule. Authorization of barter and trade will be left to Regional discretion in order to best suit the partnerships and agreements developed in consultation with Indian tribes and used within the region. Any forms of barter and trade which are authorized in previous agreements, tribal treaty, or other reserved rights will not be affected by this rule.

    General Comment (1): One commenter expressed direct support of the previously proposed rule.

    General comment (1) response: This comment is acknowledged but deemed outside of the scope of this rule. The Agency is adopting this rule for the reasons stated within including the rule's consistency with section 8105 and it meets the Agency's needs.

    General Comment (2): One commenter offered to share information regarding an organization that funds forest associations.

    General Comment (2) response: The comment is is found to be outside the scope of this rule.

    Summary of Additional Changes

    Use of the term “noncommercial”—No comments were received in response to the proposed rule's use of the term “noncommercial”. However, the term has been removed from both the title of section 223.15 as well as from section 223.15(d). Noncommercial was being used, in the proposed rule, as a reference to the Farm Bill's prohibition on commercial purposes, but, because it was not used in the Farm Bill, the term has been removed from this final rule, to avoid any confusion and for clarification purposes.

    Section 223.15(d)—Although no comments were received, a minor change was made to the wording in the last sentence, in section 223.15(d), describing how notification should take place when two or more National Forests are involved in a single request. This was done to ensure clarity regarding the notification requirement.

    Regulatory Certifications Regulatory Impact

    This final rule has been reviewed under U.S. Department of Agriculture procedures and Executive Order 12866 on Regulatory Planning and Review as amended by 13422. The Office of Management and Budget (OMB) has determined that this is not a significant rule. This final rule will not have an annual effect of $100 million or more on the economy nor adversely affect productivity, competition, jobs, the environment, public health or safety, nor State or local governments. This final rule will not interfere with an action taken or planned by another agency nor raise new legal or policy issues. Finally, this action will not alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients of such programs. Accordingly, this final rule is not subject to OMB review under Executive Order 12866.

    Proper Consideration of Small Entities

    This final rule has been considered in light of Executive Order 13272 regarding consideration of small entities and the Small Business Regulatory Enforcement Act of 1996 (SBREFA), which amended the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). It has been determined that this action will not have a significant economic impact on a substantial number of small entities as defined by the Executive Order. The final rule will have no adverse impact on small business, small not-for-profit organizations, or small units of government.

    Environmental Impact

    This final rule has no direct or indirect effect on the environment. The rules at 36 CFR 220.6(d)(2) exclude from documentation in an environmental assessment or impact statement rules, regulations, or policies to establish Service-wide administrative procedures, program processes, or instructions that do not significantly affect the quality of the human environment. The Department's assessment is that this final rule falls within this category of actions, and that no extraordinary circumstances exist that would require preparation of an environmental assessment or environmental impact statement.

    Federalism

    The Department has considered this final rule under the requirements of Executive Order 13132, Federalism, and concluded that this action will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, the Department has determined that no further assessment of federalism implications is necessary at this time.

    Consultation With Tribal Governments

    Pursuant to Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, the Forest Service entered into consultation with Indian tribes regarding this proposed rule. Beginning on or before May 1, 2010, Indian tribes were provided with the Forest Service's Interim Directive on section 8105 of the 2008 Farm Bill, and were invited to consult on changes to 36 CFR part 223. In addition, the Forest Service provided a question and answer document related to the Interim Directive and regulatory actions the Agency was considering to implement section 8105. Government-to-government consultation occurred over a period of at least 120 days, through September 1, 2010. The Forest Service received 88 comments as a result of consultation, including some received after September 1; all were considered in the development of the proposed rule.

    No Takings Implications

    This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 12360, and it has been determined that this action will not pose the risk of a taking of private property.

    Controlling Paperwork Burdens on the Public

    With this submission, and upon OMB approval, the addition of the collection requirements of Rule Identification Number 0596-AD00, OMB no. 0596-0233 for federally recognized Indian tribes wishing to request free use under the authority of section 8105 of the 2008 Farm Bill are being added to OMB control number 0596-0085 Forest Products Removal Permits and Contracts.

    Title: Sale and Disposal of National Forest System Timber; Forest Products for Traditional and Cultural Purposes.

    OMB Control Number: 0596-0233.

    Abstract: The information collection associated with the proposed rule Sale and Disposal of National Forest System Timber; Forest Products for Traditional and Cultural Purposes was published in the Federal Register on July 31, 2014 (79 FR 44327) as OMB control number 0596-0085 Forest Products Removal Permits and Contracts, Regulatory Identification Number 0596-AD00. The information collection included updates made to charge permits and contracts as well as revisions made to accommodate requests from Indian tribes for free use under section 8105 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246, 122 Stat. 1651) [hereinafter the “2008 Farm Bill”], per the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and implementing regulations at 5 CFR part 1320. No comments were received regarding the information collection during the proposed rule's 60-day notice and comment period. However, OMB has requested the information collection requirements specific to the 2008 Farm Bill, be disclosed separately as OMB 0596-0233. Upon review and approval from OMB, the two information collections (OMB 0596-0223 and OMB 0596-0085) will be merged. Therefore, through this Federal Register notice, the Agency is providing an opportunity to comment on the information collection associated with the final rule during the 30-day period between the publication date and the effective date of the final rule.

    As stated earlier in this final rule, section 8105 of the 2008 Farm Bill provides the Secretary of Agriculture with discretionary authority to provide trees, portions of trees, or forest products to Indian tribes free of charge for traditional and cultural purposes provided that the trees, portions of trees, or forest products are provided to tribal officials on behalf of an Indian tribe for traditional and cultural purposes; and the trees, portions of trees, or forest products will not be used for commercial purposes.

    Indian tribes seeking products under the 2008 Farm Bill authority must make a request for free use. “Requests . . . must be submitted to the local Forest Service District Ranger's Office(s) in writing. Requests may be made: (1) Directly by a tribal official(s) who has been authorized by the Indian tribe to make such requests; or (2) By providing a copy of a formal resolution approved by the tribal council or other governing body of the Indian tribe.” Additionally, “[t]ribal officials are encouraged to explain their requests to the Regional Forester or designated Forest Officer and, if necessary, describe how the request fits a traditional and cultural purpose. When an Indian tribe requests forest products located on two or more National Forests, authorized tribal officials should notify each of the affected Forest Service District Ranger's Offices of the requests made on other forests.” Under section 8105 of the 2008 Farm Bill, there is no stated maximum free use limitation for products requested by Indian tribes. Additionally, there is no limitation to the number of requests that each federally recognized Indian tribe may make under this final rule.

    Should Indian tribes wish to obtain proof of possession, as may be required in some States, they could be issued a FS-2400-8 free use permit by the Forest Service. The FS-2400-8 form allows use of timber or forest products at no charge (36 CFR 223.5-223.13). No changes are being made to the free-use form as a result of the 2008 Farm Bill provision. Upon receiving the permit, the permittee must comply with its terms (36 CFR 261.6), which designate forest products that can be harvested and under what conditions, such as limiting harvest to a designated area or permitting harvest of only specifically designated material. Only the minimum information necessary to comply with Federal laws and regulations is collected. Agency personnel enter the information provided by Indian tribes into a computerized database to use for any subsequent requests made by the Indian tribe. The information is printed on paper, which the applicant signs and dates. Agency personnel discuss the terms and conditions of the permit or contract with the applicant. The data gathered is not available from other sources. The collected information will help the Forest Service oversee the approval and use of forest products under section 8105 of the 2008 Farm Bill. For example, the collected information will be used to ensure applicants meet the criteria for free use of timber or forest products authorized under section 8105 and to identify permittees in the field by Forest Service personnel.

    The following summarizes the information collection associated with the final directive:

    Estimate of burden: Reporting burden for the collection of information is estimated to average 5 minutes per response.

    Respondents: Federally recognized Indian tribes under section 8105 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246, 122 Stat. 1651).

    Estimated Number of Respondents: 1,132.

    Estimated Number of Annual Responses per Respondent: 1.5.

    Estimated Total Annual Responses: 2,123.

    Estimated Total Annual Burden Hours: 241.

    Comment is invited on (1) whether this information collection is necessary for the stated purposes and proper performance of the functions of the Agency, including whether the information will have practical or scientific utility; (2) the accuracy of the Agency's estimate of burden associated with the information collection, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the information collection on respondents, including automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. The comments will be summarized and included in the request to OMB for approval.

    Energy Effects

    This final rule has been reviewed under Executive Order 13211 of May 18, 2001, and it has been determined that it has no effect on the supply, distribution, or use of energy. This rule is administrative in nature and, therefore, the preparation of a statement of energy effects is not required.

    Civil Justice Reform

    This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. When the final rule is adopted: (1) All State and local laws and regulations that conflict with the final rule or that would impede full implementation of this rule will be preempted; (2) no retroactive effect will be given to the final rule; and (3) the Department will not require the use of administrative proceedings before parties could file suit in court challenging its provisions.

    Unfunded Mandates

    Pursuant to Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538), which the President signed into law on March 22, 1995, the Department has assessed the effects of this final rule on State, local, and tribal governments and the private sector. This action will not compel the expenditure of $100 million or more by any State, local, or tribal government or anyone in the private sector. Therefore, a statement under section 202 of the Act is not required.

    List of Subjects in 36 CFR Part 223

    Administrative practice and procedure, Exports, Forests and forest products, Government contracts, National forests, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, the Forest Service, U.S. Department of Agriculture, amends 36 CFR part 223 as follows:

    PART 223—SALE AND DISPOSAL OF NATIONAL FOREST SYSTEM TIMBER, SPECIAL FOREST PRODUCTS, AND FOREST BOTANICAL PRODUCTS 1. The authority citation for part 223 is revised to read as follows: Authority:

    90 Stat. 2958, 16 U.S.C. 472a; 98 Stat. 2213, 16 U.S.C. 618, 104 Stat. 714-726, 16 U.S.C. 620-620j, 25 U.S.C. 3055 and 3057, 113 Stat. 1501a, 16 U.S.C. 528 note; unless otherwise noted.

    2. Add § 223.15 to subpart A to read as follows:
    § 223.15 Provision of trees, portions of trees, or forest products to Indian tribes for traditional and cultural purposes.

    (a) Pursuant to section 8105 of the Food, Conservation, and Energy Act of 2008 (Pub. L. 110-246, 122 Stat. 1651) [hereinafter the “2008 Farm Bill”], Regional Foresters or designated Forest Officers may, at their discretion, provide trees, portions of trees, or forest products to Indian tribes free of charge for traditional and cultural purposes provided that:

    (1) The trees, portions of trees, or forest products are provided to tribal officials on behalf of an Indian tribe for traditional and cultural purposes; and

    (2) The trees, portions of trees, or forest products will not be used for commercial purposes.

    (b) The following definitions apply to this section:

    Indian tribe. The term “Indian tribe” means any Indian or Alaska Native tribe, band, nation, pueblo, village, or other community the name of which is included on a list published by the Secretary of the Interior pursuant to section 104 of the Federally Recognized Indian Tribe List Act of 1994 (25 U.S.C. 479a-1).

    Traditional and cultural purpose. The term “traditional and cultural purpose,” with respect to a definable use, area, or practice, means that the use, area, or practice is identified by an Indian tribe as traditional or cultural because of the long-established significance or ceremonial nature of the use, area, or practice to the Indian tribe.

    Tribal officials: The term “tribal officials” means elected or duly appointed officials of Indian tribal governments.

    (c) Requests for trees, portions of trees, or forest products made under this section must be submitted to the local Forest Service District Ranger's Office(s) in writing. Requests may be made:

    (1) Directly by a tribal official(s) who has been authorized by the Indian tribe to make such requests; or

    (2) By providing a copy of a formal resolution approved by the tribal council or other governing body of the Indian tribe.

    (d) Requests for trees, portions of trees, and forest products made under this section must be directed to the appropriate Forest Service District Ranger(s)' Office from which the items are being requested. Tribal officials are encouraged to explain their requests to the Regional Forester or designated Forest Officer and, if necessary, describe how the request fits a traditional and cultural purpose. When an Indian tribe requests forest products located on two or more National Forests, authorized tribal officials should notify each of the affected Forest Service District Ranger's Offices of the requests made on other forests.

    (e) Agency Line Officers and managers (who have been authorized by name through official Forest Service correspondence) are authorized to provide trees, portions of trees, and forest products under this section subject to the following limitations:

    (1) District Rangers and Forest Officers may provide material not exceeding $25,000 in value in any one fiscal year to an Indian tribe;

    (2) Forest Supervisors may provide material not exceeding $50,000 in value in any one fiscal year to an Indian tribe;

    (3) Regional Foresters may provide material not exceeding $100,000 in value in any one fiscal year to an Indian tribe; and

    (4) The Chief of the Forest Service may provide material exceeding $100,000 in value to an Indian tribe.

    (f) A request for trees, portions of trees, or forest products under this section may be conditioned or denied for reasons including, but not limited to the following:

    (1) Protecting public health and safety;

    (2) Preventing interference with Forest Service and/or commercial operations;

    (3) Complying with Federal and State laws and regulations;

    (4) Ensuring sustainability; or

    (5) Otherwise protecting National Forest System land and resources.

    (g) All decisions made under this section must comply with the National Forest Management Act, relevant land management plans, the National Environmental Policy Act, the Endangered Species Act, all other applicable laws and regulations, and are subject to tribal treaty and other reserved rights and the savings provisions of the Cultural and Heritage Cooperation Authority (25 U.S.C. 3057(b)).

    Dated: July 29, 2016. Thomas L. Tidwell, Chief, Forest Service.
    [FR Doc. 2016-22929 Filed 9-23-16; 8:45 am] BILLING CODE 3411-15-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2015-0835; FRL 9952-79-Region 7] Approval of Air Quality Implementation Plans; Missouri State Implementation Plan for the 2008 Lead Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve a revision to the State Implementation Plan (SIP) for the State of Missouri. This final action will approve Missouri's SIP for the lead National Ambient Air Quality Standard (NAAQS) received by EPA on October 20, 2014. EPA proposed approval of this plan on February 29, 2016. The applicable standard addressed in this action is the lead NAAQS promulgated by EPA in 2008. EPA believes that the SIP submitted by the state satisfies the applicable requirements of the Clean Air Act (CAA) identified in EPA's Final Rule published in the Federal Register on October 15, 2008, and will bring the area surrounding the Exide Technologies Canon Hollow facility in Forest City, Missouri, into attainment of the 0.15 microgram per cubic meter (ug/m3) lead NAAQS.

    DATES:

    This final rule is effective on October 26, 2016.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2015-0835. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available through www.regulations.gov or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional information.

    FOR FURTHER INFORMATION CONTACT:

    Stephanie Doolan, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7719, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document “we,” “us,” or “our” refer to EPA.

    Table of Contents I. What is being addressed in this document? II. Have the requirements for approval of a SIP revision been met? III. EPA's Response to Comments IV. What action is EPA taking? I. What is being addressed in this document?

    In this document, EPA is granting final approval of Missouri's SIP to address violations of the lead NAAQS near the Exide Technologies—Canon Hollow facility in Holt County, Missouri. The applicable standard addressed in this action is the lead NAAQS promulgated by EPA in 2008. The applicable requirements of the CAA identified in EPA's Final Rule (73 FR 66964, October 15, 2008), and will bring the area into compliance with the 0.15 microgram per cubic meter (ug/m3) lead NAAQS. EPA's proposal containing the background information for this action can be found at 81 FR 10182, February 29, 2016.

    II. Have the requirements for the approval of a SIP revision been met?

    The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

    III. EPA's Response to Comments

    The public comment period on EPA's proposed rule opened February 29, 2016, the date of its publication in the Federal Register, and closed on March 30, 2016. During this period, EPA received two comments posted anonymously to the Regulations.gov Web site.

    One comment pertains to mold in indoor air and not the subject of the proposed approval of the SIP revision to address lead in ambient air. Because the comment is anonymous, EPA is unable to contact the commenter directly to offer assistance. However, EPA offers that the commenter may contact Ms. Gina Grier of EPA Region 7 directly at (913) 551-7078 for more information and assistance on the commenter's concerns about mold.

    The second comment states that he/she is in agreement with EPA's proposed action to approve the revision to the SIP and the commenter offers two suggestions. The first suggestion is to estimate the cost of water washing to clean haul routes on the facility property and the second is a concern that limiting truck traffic on the facility property may reduce the resources purchased in the state of Missouri.

    EPA's response to the first suggestion regarding water washing to clean the on-site haul routes is that the use of water to remove lead from on-site roads was studied and determined to be a cost-effective and necessary strategy to control lead during the development of the National Emissions Standards for Hazardous Air Pollutants (NESHAP) for Secondary Lead Smelters, promulgated January 5, 2012 (77 FR 580). Because the Exide Canon Hollow facility is a secondary lead smelter, it must comply with the requirements of this rule, including, among other things, the requirement to conduct twice daily water washing of on-site haul routes. This cleaning is necessary to control lead-containing dust in order to meet the 2008 lead NAAQS. The NESHAP is related to the NAAQS in that the NESHAP requires attainment of the same 0.15 ug/m3 standard for lead at the fenceline. No change has been made to address this suggestion.

    Regarding the concern that limiting truck traffic may reduce the resources purchased in the state of Missouri, the state and facility arrived at the limitations on truck traffic using EPA's AERMOD computer-based modeling. Truck traffic along haul routes is known to increase the amount of lead-containing dust that becomes re-entrained in ambient air. Modeling was used to estimate the amount of truck traffic along facility haul routes that could be allowed without causing a NAAQS violation at the fenceline. Thus, the limitations are necessary to safeguard the NAAQS level which EPA has determined to be protective of human health and the environment. It also should be noted that the restrictions on truck traffic that are required by the SIP only pertain to traffic on the facility property; there are no limitations on the amount of truck traffic on public roads. No change has been made to address this concern.

    IV. What action is EPA taking?

    EPA is taking final action to amend the Missouri SIP to approve the SIP revision for the 2008 lead NAAQS. The applicable standard addressed in this action is the lead NAAQS promulgated by EPA in 2008 (73 FR 66964).

    Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the EPA-Approved Kansas Source-Specific Requirements. Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully Federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1 EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    1 62 FR 27968 (May 22, 1997).

    Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this proposed action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register.

    A major rule cannot take effect until 60 days after it is published in the Federal Register. This proposed action is not a “major rule” as defined by 5 U.S.C. 804(2).

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 25, 2016. Filing a petition for reconsideration by the Administrator of this proposed rule does not affect the finality of this rulemaking for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such future rule or action. This proposed action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2))

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: September 13, 2016. Mark Hague, Regional Administrator, Region 7.

    For the reasons stated in the preamble, EPA amends 40 CFR part 52 as set forth below:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

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

    Subpart AA—Missouri 2. Amend § 52.1320 by adding paragraphs (d)(31) and (e)(71) to read as follows:
    § 52.1320 Identification of Plan

    (d) * * *

    EPA-Approved Missouri Source-Specific Permits and Orders Name of source Order/permit
  • No.
  • State
  • effective
  • date
  • EPA approval date Explanation
    *         *         *         *         *         *         * (31) Exide Technologies Canon Hollow, MO Consent Judgment 14H0-CC00064 10/10/14 9/26/16 and [Insert Federal Register citation]

    (e) * * *

    EPA-Approved Missouri Nonregulatory SIP Provisions Name of
  • nonregulatory
  • SIP provision
  • Applicable
  • geographic or
  • nonattainment
  • area
  • State
  • submittal
  • date
  • EPA approval
  • date
  • Explanation
    *         *         *         *         *         *         * (71) Exide Technologies Compliance Plan 2008 lead NAAQS Forest City 10/15/14 9/26/16 and [Insert Federal Register citation] [EPA-R07-OAR-2015-0835; FRL 9952-79-Region 7].
    [FR Doc. 2016-22981 Filed 9-23-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2016-0315; FRL-9952-72-Region 4] Air Plan Approval; Georgia; Prong 4—2008 Ozone, 2010 NO2, SO2, and 2012 PM2.5 AGENCY:

    Environmental Protection Agency.

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is conditionally approving the portions of revisions to the Georgia State Implementation Plan (SIP), submitted by the Georgia Department of Natural Resources (DNR), Environmental Protection Division (GAEPD), addressing the Clean Air Act (CAA or Act) visibility transport (prong 4) infrastructure SIP requirements for the 2008 8-hour Ozone, 2010 1-hour Nitrogen Dioxide (NO2), 2010 1-hour Sulfur Dioxide (SO2), and 2012 annual Fine Particulate Matter (PM2.5) National Ambient Air Quality Standards (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of each NAAQS promulgated by EPA, commonly referred to as an “infrastructure SIP.” Specifically, EPA is conditionally approving the prong 4 portions of Georgia's March 6, 2012, 8-hour Ozone infrastructure SIP submission; March 25, 2013, 2010 1-hour NO2 infrastructure SIP submission; October 22, 2013, 2010 1-hour SO2 infrastructure SIP submission; and December 14, 2015, 2012 annual PM2.5 infrastructure SIP submission. All other applicable infrastructure requirements for these SIP submissions have been or will be addressed in separate rulemakings.

    DATES:

    This rule will be effective [insert date 30 days after date of publication in the Federal Register].

    ADDRESSES:

    EPA has established a docket for this action under Docket Identification No EPA-R04-OAR-2016-0315. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Sean Lakeman of the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Lakeman can be reached by telephone at (404) 562-9043 or via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    By statute, SIPs meeting the requirements of sections 110(a)(1) and (2) of the CAA are to be submitted by states within three years after promulgation of a new or revised NAAQS to provide for the implementation, maintenance, and enforcement of the new or revised NAAQS. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Sections 110(a)(1) and (2) require states to address basic SIP elements such as the requirements for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the newly established or revised NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for infrastructure SIPs. Section 110(a)(2) lists specific elements that states must meet for the infrastructure SIP requirements related to a newly established or revised NAAQS. The contents of an infrastructure SIP submission may vary depending upon the data and analytical tools available to the state, as well as the provisions already contained in the state's implementation plan at the time in which the state develops and submits the submission for a new or revised NAAQS.

    Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (prong 1) and from interfering with maintenance of the NAAQS in another state (prong 2). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (prong 3) or from interfering with measures to protect visibility in another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement.

    Georgia's infrastructure SIP revisions cite to the regional haze program as satisfying the requirements of prong 4 for the 2008 8-hour Ozone, 2010 1-hour NO2, 2010 1-hour SO2, and 2012 annual PM2.5 NAAQS. However, the State may not currently rely on its regional haze SIP to satisfy these requirements because EPA has not yet fully approved Georgia's regional haze SIP as it relies on the Clean Air Interstate Rule (CAIR) to satisfy the nitrogen oxides (NOX) and SO2 Best Available Retrofit Technology (BART) requirements for the CAIR-subject electric generating units (EGUs) in the State and the requirement for a long-term strategy sufficient to achieve the state-adopted reasonable progress goals.1 Therefore, on May 26, 2016, Georgia submitted a commitment letter to EPA requesting conditional approval of the prong 4 portions of the aforementioned infrastructure SIP revisions.

    1 CAIR, promulgated in 2005, required 27 states and the District of Columbia to reduce emissions of NOX and SO2 that significantly contribute to, or interfere with maintenance of, the 1997 NAAQS for fine particulates and/or ozone in any downwind state. CAIR imposed specified emissions reduction requirements on each affected State, and established several EPA-administered cap and trade programs for EGUs that States could join as a means to meet these requirements.

    In its commitment letter, Georgia commits to satisfy the prong 4 requirements for the 2008 8-hour ozone NAAQS, 2010 1-hour NO2 NAAQS, 2010 1-hour SO2 NAAQS, and 2012 PM2.5 NAAQS by providing a SIP revision that adopts provisions for participation in the Cross State Air Pollution Rule annual NOX and annual SO2 trading programs, including annual NOX and annual SO2 budgets that are at least as stringent as the budgets codified for Georgia at 40 CFR 97.710(a) (SO2 Group 2 trading budgets) and 40 CFR 97.410(a) (NOX Annual trading budgets). Georgia will rely on this SIP revision adopting such budgets to submit a concurrent SIP revision specifically addressing the visibility requirements of prong 4. In its commitment letter, Georgia commits to providing these two concurrent SIP revisions within one year of EPA's final conditional approval of the prong 4 portions of the infrastructure SIP revisions and provides an anticipated schedule for these revisions. If the revised infrastructure SIP revision relies on a fully approvable regional haze SIP, Georgia also commits to providing the necessary regional haze SIP revision to EPA within one year of EPA's final conditional approval.

    If Georgia meets its commitment within one year of final conditional approval, the prong 4 portions of the conditionally approved infrastructure SIP submissions will remain a part of the SIP until EPA takes final action approving or disapproving the new SIP revision(s). However, if the State fails to submit these revisions within the one-year timeframe, the conditional approval will automatically become a disapproval one year from EPA's final conditional approval and EPA will issue a finding of disapproval. EPA is not required to propose the finding of disapproval. If the conditional approval is converted to a disapproval, the final disapproval triggers the FIP requirement under CAA section 110(c).

    In a notice of proposed rulemaking (NPRM) published on July 11, 2016 (81 FR 44831), EPA proposed to conditionally approve the prong 4 portions of the aforementioned infrastructure SIP submissions. The NPRM provides additional detail regarding the rationale for EPA's action, including further discussion of the prong 4 requirements and the basis for Georgia's commitment letter. Comments on the proposed rulemaking were due on or before August 10, 2016. EPA received no adverse comments on the proposed action.

    II. Final Action

    EPA is conditionally approving the prong 4 portions of Georgia's March 6, 2012, 8-hour Ozone infrastructure SIP submission; March 25, 2013, 2010 1-hour NO2 infrastructure SIP submission; October 22, 2013, 2010 1-hour SO2 infrastructure SIP submission; and December 14, 2015, 2012 annual PM2.5 infrastructure SIP submission. All other applicable infrastructure requirements for these SIP submissions have been or will be addressed in separate rulemakings.

    III. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 25, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate Matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.

    Dated: September 13, 2016. V. Anne Heard, Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart L—Georgia 2. Section 52.569 is added to read as follows:
    § 52.569 Conditional approval.

    Georgia submitted a letter to EPA on May 26, 2016, with a commitment to address the State Implementation Plan deficiencies regarding requirements of Clean Air Act section 110(a)(2)(D)(i)(II) related to interference with measures to protect visibility in another state (prong 4) for the 2008 8-hour Ozone, 2010 1-hour NO2, 2010 1-hour SO2, and 2012 annual PM2.5 NAAQS. EPA conditionally approved the prong 4 portions of Georgia's March 6, 2012, 8-hour Ozone infrastructure SIP submission; March 25, 2013, 2010 1-hour NO2 infrastructure SIP submission; October 22, 2013, 2010 1-hour SO2 infrastructure SIP submission; and December 14, 2015, 2012 annual PM2.5 infrastructure SIP submission in an action published in the Federal Register on September 26, 2016. If Georgia fails to meet its commitment by September 26, 2017, the conditional approval will automatically become a disapproval on that date and EPA will issue a finding of disapproval.

    [FR Doc. 2016-22887 Filed 9-23-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 130 [EPA-HQ-OW-2014-0622; FRL-9952-61-OW] RIN 2040-AF52 Treatment of Indian Tribes in a Similar Manner as States for Purposes of Section 303(d) of the Clean Water Act AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    In section 518(e) of the Clean Water Act (CWA), Congress authorized the Environmental Protection Agency (EPA) to treat eligible federally recognized Indian tribes in a similar manner as a state for purposes of administering section 303 and certain other provisions of the CWA, and directed the agency to promulgate regulations effectuating this authorization. EPA has issued regulations establishing a process for federally recognized tribes to obtain treatment in a similar manner as states (TAS) for several provisions of the CWA; for example, 53 tribes have obtained TAS authority to issue water quality standards under CWA section 303(c). EPA has not yet promulgated regulations expressly establishing a process for tribes to obtain TAS authority to administer the water quality restoration provisions of CWA section 303(d), including issuing lists of impaired waters and developing total maximum daily loads (TMDLs), as states routinely do. EPA is now remedying this gap. By establishing regulatory procedures for eligible tribes to obtain TAS for the CWA Section 303(d) Impaired Water Listing and TMDL Program, this final rule enables eligible tribes to obtain authority to identify impaired waters on their reservations and to establish TMDLs, which serve as plans for attaining and maintaining applicable water quality standards (WQS). The rule is comparable to similar regulations that EPA issued in the 1990s for the CWA Section 303(c) WQS and CWA Section 402 and Section 404 Permitting Programs, and includes features designed to minimize paperwork and unnecessary reviews.

    DATES:

    This final rule is effective October 26, 2016.

    ADDRESSES:

    EPA has established a docket for this rule under Docket identification (ID) No. EPA-HQ-OW-2014-0622. All documents in the docket are listed and accessible for viewing at http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Ruth Chemerys, Assessment and Watershed Protection Division, Office of Wetlands, Oceans and Watersheds (4503T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 566-1216; fax number: (202) 566-1331; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    This supplementary information is organized as follows:

    I. General Information A. Does this action apply to me? B. Over what area may tribes apply for TAS for the CWA Section 303(d) Impaired Water Listing and TMDL Program? C. How was this rule developed? D. What is the Agency's authority for issuing this rule? II. What is the statutory and regulatory history of TAS under the CWA? A. Statutory History B. Regulatory History III. Why might a tribe be interested in seeking TAS authority for the CWA Section 303(d) Impaired Water Listing and TMDL Program? IV. What program responsibilities will tribes have upon obtaining TAS for the CWA Section 303(d) Impaired Water Listing and TMDL Program? A. Identification of Impaired Waters and Submission of Section 303(d) Lists B. Establishment and Submission of TMDLs C. EPA Review of Lists and TMDLs V. What are EPA's procedures for a tribe to seek TAS for the CWA Section 303(d) Impaired Water Listing and TMDL Program? VI. What special circumstances may exist regarding qualification for TAS for the CWA Section 303(d) Impaired Water Listing and TMDL Program? VII. What procedure will EPA follow in reviewing a tribe's TAS application? A. Notice to Appropriate Governmental Entities B. Avoidance of Duplicative Notice and Comment Procedures 1. What did EPA consider regarding the notice and comment exemption? 2. What is EPA's position on certain public comments regarding notice and comment? C. Treatment of Competing or Conflicting Claims D. EPA's Decision Process VIII. What are EPA's expectations regarding WQS and WQS TAS as prerequisites for tribes applying for TAS authority for the 303(d) Program? A. What did EPA consider regarding WQS and WQS TAS as prerequisites for 303(d) TAS? B. What is EPA's position on certain public comments regarding WQS and WQS TAS as prerequisites for 303(d) TAS? IX. What financial and technical support is available from EPA to tribes as they choose to develop and implement a CWA Section 303(d) Impaired Water Listing and TMDL Program? X. What is EPA's position on certain other public comments received? A. Impact on State/Local Authority for CWA Programs B. Relation to May 16, 2016, Interpretive Rule XI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Tribal Consultation and Coordination G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act I. General Information A. Does this action apply to me?

    This rule applies to federally recognized tribal governments with reservations interested in seeking TAS eligibility to administer the CWA Section 303(d) Impaired Water Listing and TMDL Program. Although this rule applies directly only to Indian tribes applying for TAS, state and local governments, as well as other entities including other Indian tribes, may be interested to the extent they are adjacent to the Indian reservation 1 lands of TAS applicant tribes, share water bodies with such tribes, and/or discharge pollutants to waters of the United States located within or adjacent to such reservations. The table below provides examples of entities that could be affected by this action or have an interest in it.

    1 See “Over What Area May Tribes Apply for TAS for the CWA Section 303(d) Impaired Water Listing and TMDL Program?” below.

    Category Examples of potentially affected or interested entities Tribes Federally recognized tribes with reservations that are interested in applying for TAS for CWA Section 303(d) Impaired Water Listing and TMDL Program, and other interested tribes. States States adjacent to reservations of potential applicant tribes. Industry dischargers Industrial and other commercial entities discharging pollutants to waters within or adjacent to reservations of potential applicant tribes. Municipal dischargers Publicly owned treatment works or other facilities discharging pollutants to waters within or adjacent to reservations of potential applicant tribes.

    If you have questions regarding the effect of this rule on a particular entity, please consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

    B. Over what area may Tribes apply for TAS for the CWA Section 303(d) Impaired Water Listing and TMDL Program?

    Under section 518(e) of the CWA, 33 U.S.C. 1377(e), Indian tribes may seek TAS authorization to administer certain CWA programs pertaining to water resources of their reservations. Tribes are not eligible to administer CWA programs pertaining to any non-reservation Indian country 2 or any other type of non-reservation land. The term “federal Indian reservation” is defined at CWA section 518(h)(1) to include all land within the limits of any Indian reservation under the jurisdiction of the United States Government notwithstanding the issuance of any patent, and including rights-of-way running through the reservation. CWA sections 518(e)(2), (h)(1); see also 40 CFR 131.3(k). EPA's longstanding position is that reservations include both formal reservations (e.g., named reservations established through federal treaties with tribes, federal statutes, or Executive Orders of the President) as well as tribal trust lands that may not be formally designated as reservations, but that qualify as informal reservations. See, e.g., 56 FR 64876, 64881, December 12, 1991; Arizona Public Service Co. v. EPA, 211 F.3d 1280, 1292-1294 (D.C. Cir. 2000), cert. denied sub nom., Michigan v. EPA, 532 U.S. 970 (2001). Tribes may seek TAS authorization for both formal and informal reservations, and both types of lands are referred to herein as “reservations.”

    2 The term Indian country is defined at 18 U.S.C. 1151.

    Although this rule facilitates eligible tribes' administration of an additional regulatory program, nothing in this rule changes, expands, or contracts the geographic scope of potential tribal TAS eligibility under the CWA.

    C. How was this rule developed?

    In developing this rule, EPA conducted consultation and coordination with tribes and states before proposing this rule in the Federal Register on January 19, 2016. 81 FR 2791. On March 28, 2014, EPA initiated consultation and coordination with federally recognized Indian tribes concerning the planned proposed rulemaking. On September 19, 2014, EPA invited input from intergovernmental associations and met with them on October 1, 2014. Additional consultation and coordination occurred in 2015. During the 60-day public comment period in 2016, EPA provided informational webinars for the public, tribes, and states, and conducted further consultation and coordination with tribes and states. Following the public comment period, EPA also participated in informational meetings with tribes.

    EPA received over 830 public comments on the proposed rule. EPA received over 800 mass email comments in support of the rule, as well as individual comments from nine tribes and tribal associations, expressing support for the rule. EPA also received individual comments from eight states, one local government, one local non-governmental organization, two regulated entities, several private citizens, and one federal agency. Most states generally were neutral regarding the proposed rule overall. Some states cited special circumstances regarding applicability of the rule in their states. Two states and the two local entities opposed the proposed rule, citing concern regarding impacts on state and local programs, as well as objections to EPA's proposed (now final) interpretive rule regarding tribal jurisdiction under the Clean Water Act. Revised Interpretation of Clean Water Act Tribal Provision, 80 FR 47430 (August 7, 2015) (proposed rule); 81 FR 30183 (May 16, 2016) (final rule).

    This final rule establishing regulatory procedures for eligible tribes to obtain TAS for the CWA Section 303(d) Impaired Water Listing and TMDL Program reflects EPA's careful consideration of all the comments. The comments and EPA's responses to the comments are available in the public docket at http://www.regulations.gov.

    D. What is the Agency's authority for issuing this rule?

    The CWA, 33.U.S.C. 1251, et seq, including section 518 (33 U.S.C.1377).

    II. What is the statutory and regulatory history of TAS under the CWA? A. Statutory History

    Congress added section 518 to the CWA as part of amendments made in 1987. Section 518(e) authorizes EPA to treat eligible Indian tribes in the same manner as it treats states for a variety of purposes, including administering each of the principal CWA regulatory programs and receiving grants under several CWA funding authorities. Section 518(e) is commonly known as the “TAS” provision. Section 303 is expressly identified in section 518(e) as one of the provisions available for TAS.

    Section 518(e) also requires EPA to promulgate regulations specifying the TAS process for applicant tribes. Section 518(h) defines “Indian tribe” to mean any Indian tribe, band, group, or community recognized by the Secretary of the Interior and exercising governmental authority over a federal Indian reservation.

    B. Regulatory History

    Pursuant to section 518(e), EPA promulgated several final regulations establishing TAS criteria and procedures for Indian tribes interested in administering programs under the Act. The relevant regulations addressing TAS requirements for the principal CWA regulatory programs are:

    • 40 CFR 131.8 for section 303(c) water quality standards, published December 12, 1991 (56 FR 64876);

    • 40 CFR 131.4(c) for CWA section 401 water quality certification, published December 12, 1991 (56 FR 64876);

    • 40 CFR 123.31-34 for CWA section 402 National Pollutant Discharge Elimination System (NPDES) permits and other provisions, and 40 CFR 501.22-25 for the sewage sludge management program, published December 22, 1993 (58 FR 67966); and

    • 40 CFR 233.60-62 for CWA section 404 dredge or fill permits, published February 11, 1993 (58 FR 8172).

    In 1994, EPA amended the above regulations to simplify the TAS process and eliminate unnecessary and duplicative requirements. 59 FR 64339 (December 14, 1994) (“Simplification Rule”). For example, the Simplification Rule eliminated the need for a tribe to prequalify for TAS before applying to administer the section 402 and section 404 permit Programs. Instead, the rule provided that a tribe would seek to establish its TAS eligibility at the Program approval stage (subject to notice and comment procedures in the Federal Register). However, the rule retained the separate TAS prequalification requirement (including local notice and comment procedures) for section 303(c) water quality standards and section 401 water quality certifications. Id.; see also, 40 CFR 131.8(c)(2), (3).3 The TAS regulations for CWA regulatory programs have remained intact since promulgation of the Simplification Rule. EPA is now addressing a gap in its current TAS regulations by finalizing regulations that specify how tribes may seek TAS for the CWA Section 303(d) Impaired Water Listing and TMDL Program.

    3 Under the CWA and EPA's regulations, tribes may simultaneously (1) apply for TAS under CWA section 518 for the purpose of administering water quality standards and (2) submit actual standards for EPA review under section 303(c). Although they may proceed together, a determination of TAS eligibility and an approval of actual water quality standards are two distinct actions.

    On May 16, 2016, EPA published an interpretive rule revising the Agency's approach to tribal jurisdiction under the CWA. Revised Interpretation of Clean Water Act Tribal Provision, 81 FR 30183 (May 16, 2016). In the interpretive rule, EPA concluded definitively that section 518 includes an express delegation of authority by Congress to Indian tribes to administer regulatory programs over their entire reservations, subject to the eligibility requirements in section 518. This reinterpretation eliminates the need for applicant tribes to demonstrate inherent authority to regulate under the CWA, thus allowing tribes to implement the congressional delegation of authority. The reinterpretation also brings EPA's treatment of tribes under the CWA in line with EPA's treatment of tribes under the Clean Air Act, which has similar statutory language addressing tribal regulation of Indian reservation areas.

    The interpretive rule did not result in any revisions to the application procedures of EPA's TAS regulations as codified in the Code of Federal Regulations. EPA will continue to review CWA TAS applications in accordance with existing TAS regulations, which provide the procedural infrastructure for the TAS application and review processes. This rule, which is closely based on the existing CWA TAS regulations, provides similar regulatory infrastructure for tribes interested in applying to administer the section 303(d) Program. Any application of the interpretive rule would occur solely in the context of an EPA final decision approving a tribe's TAS application based on the revised interpretation of tribal jurisdiction. See, e.g., 81 FR at 30185.

    III. Why might a tribe be interested in seeking TAS authority for the CWA Section 303(d) Impaired Water Listing and TMDL Program?

    TAS for the CWA Section 303(d) Impaired Water Listing and TMDL Program provides a tribe with the opportunity to participate directly in restoring and protecting its reservation waters through implementing the Program, as Congress authorized under CWA section 518(e). In the rest of this notice, EPA refers to the functions identified in CWA section 303(d) regarding listing of impaired waters and establishment of TMDLs as the “Section 303(d) Impaired Water Listing and TMDL Program” or “303(d) Program.” Section 303(d) provides for states and authorized tribes to (1) develop lists of impaired waters (and establish priority rankings for waters on the lists) and (2) establish TMDLs for these waters. By listing impaired waters, a state or authorized tribe identifies those waters in its territory that are not currently meeting EPA-approved or EPA-promulgated WQS (collectively referred to as “applicable WQS”). A TMDL is a planning document intended to address impairment of waters, including the calculation and allocation to point and nonpoint sources of the maximum amount of a pollutant that a water body can receive and still meet applicable WQS, with a margin of safety.

    By obtaining TAS for section 303(d), tribes can take the lead role under the CWA in identifying and establishing a priority ranking for impaired water bodies on their reservations and in establishing TMDLs and submitting them to EPA for approval. These are important informational and planning steps that tribes can take to restore and maintain the quality of reservation waters.

    TMDLs must allocate the total pollutant load among contributing point sources (“waste load allocations” or “WLAs”) and nonpoint sources (“load allocations” or “LAs”). 40 CFR 130.2. Point source WLAs are addressed through the inclusion of water quality-based effluent limits in national pollutant discharge elimination system (NPDES) permits issued to such sources. Under EPA's regulations, NPDES permitting authorities shall ensure that “[e]ffluent limits developed to protect a narrative water quality criterion, a numeric water quality criterion, or both, are consistent with the assumptions and requirements of any available waste load allocation for the discharge prepared by the State and approved by EPA pursuant to 40 CFR 130.7.” 40 CFR 122.44(d)(1)(vii)(B). WLAs under 40 CFR 122.44(d)(1)(vii)(B) would include WLAs developed by a tribe with TAS authorization and approved by EPA pursuant to 40 CFR 130.7. For water bodies impaired by pollutants from nonpoint sources, authorized tribes would not acquire new or additional implementation authorities when listing such impaired water bodies and establishing TMDLs. Instead, the mechanisms for implementing the nonpoint source pollutant reductions, or LAs, identified in any tribal TMDLs would include existing tribal authorities, other federal agencies' policies and procedures, as well as voluntary and incentive-based programs.

    This rule does not require anything of tribes that are not interested in TAS for the 303(d) Program. Based on pre- and post-proposal input, EPA understands that not all tribes will be interested in obtaining TAS for 303(d), and some may consider other approaches that might benefit their reservation waters. Clean Water Act section 319 watershed-based plans, for example, may help tribes protect and restore water resources threatened or impaired by nonpoint source pollution.4

    4 See Handbook for Developing and Managing Tribal Nonpoint Source Pollution Programs under Section 319 of the Clean Water Act, February 2010, available at http://www2.epa.gov/sites/production/files/2015-09/documents/2010_02_19_nps_tribal_pdf_tribal_handbook2010.pdf.

    IV. What program responsibilities will tribes have upon obtaining TAS for the CWA Section 303(d) Impaired Water Listing and TMDL Program?

    The goal of the CWA is “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” CWA section 101(a). Identification of impaired waters and TMDLs are important tools for achieving that goal. After a tribe receives EPA approval of its eligibility to implement a CWA Section 303(d) Impaired Water Listing and TMDL Program, it is treated in a manner similar to a state and, for purposes of list and TMDL development, it would become an “authorized tribe.” Generally, the federal statutory and regulatory requirements for state 303(d) Programs would be applicable to authorized tribes. See 40 CFR 130.16(c)(5). The following paragraphs identify important 303(d) Program responsibilities that tribes with TAS would assume and implement.

    A. Identification of Impaired Waters and Submission of Section 303(d) Lists

    Under section 303(d) of the CWA, every two years, authorized tribes will be required to develop lists of waters not meeting, or not expected to meet, applicable water quality standards. 40 CFR 130.7(d). These lists are commonly called “impaired waters lists” or “303(d) lists.” Impaired waters are waters for which technology-based limitations and other required controls are not stringent enough to meet applicable CWA water quality standards. Threatened waters are waters that currently attain applicable WQS, but for which existing and readily available data and information indicate that applicable WQS will likely not be met by the time the next list of impaired or threatened waters is due to EPA.5 The authorized tribe's section 303(d) list would include all impaired and threatened waters within the scope of its 303(d) TAS authorization. In this notice, EPA uses the term “impaired waters” to refer to both impaired and threatened waters.6 The authorized tribe would be required to “assemble and evaluate all existing and readily available information” in developing its section 303(d) list. 40 CFR 130.7(b)(5). EPA's regulations include a non-exhaustive list of water quality-related data and information to be considered. Id. The tribe would establish priorities for development of TMDLs for waters on its section 303(d) list based on the severity of the pollution and the uses to be made of the waters. 40 CFR 130.7(b)(4).7 The tribe would then submit its list of impaired waters to EPA for review and approval.

    5Guidance for 2006 Assessment, Listing and Reporting Requirements Pursuant to Sections 303(d), 305(b) and 314 of the Clean Water Act, July 29, 2005, available at https://www.epa.gov/sites/production/files/2015-10/documents/2006irg-report.pdf.

    6 Under EPA's regulations, “water quality limited segments” include both impaired waters and threatened waters, and are defined as “any segment where it is known that water quality does not meet applicable water quality standards, and/or is not expected to meet applicable water quality standards, even after the application of the technology-based effluent limitations required by sections 301(b) and 306 of the Act.” 40 CFR 130.2(j).

    7 Section 303(d)(1) requires states to “establish a priority ranking” for the segments it identifies on the list, taking into account the severity of the pollution and the uses to be made of such segments, and to establish TMDLs “in accordance with the priority ranking.” EPA will review the priority ranking but does not take action to approve or disapprove it. See Guidance for 2006 Assessment, Listing and Reporting Requirements Pursuant to Sections 303(d), 305(b) and 314 of the Clean Water Act, July 29, 2005, available at https://www.epa.gov/sites/production/files/2015-10/documents/2006irg-report.pdf.

    Like states, authorized tribes are required to submit their “303(d) lists” to EPA for approval every two years on April 1 (lists are due April 1 of even-numbered years). As indicated in section 130.16(c)(5) of this rule, a tribe gaining TAS status is provided at least 24 months to submit its first impaired waters list to EPA. The tribe's first impaired waters list is due to EPA the next listing cycle due date that is at least 24-months from the later of (1) the date the tribe's TAS application for 303(d) is approved or (2) the date EPA-approved/promulgated WQS for the tribe's waters are effective. (See section VII for the procedure EPA will follow in reviewing a tribe's TAS application.). Thus, for example, if EPA approves a tribe's TAS application on March 15, 2017 and the tribe's WQS on June 30, 2017, the tribe's first list would be due on April 1, 2020. The tribe could submit its list to EPA prior to that date, if it chooses.

    Most tribes that would be eligible for TAS authorization under this rule are likely to be recipients of CWA section 106 grants and would thus be required to submit section 106 grant work plans annually. If a tribe's CWA section 106 grant work plan includes ambient water quality monitoring activities, the tribe is also required to develop a tribal assessment report (TAR) pursuant to the CWA section 106 grant reporting requirements.8 EPA encourages tribes that obtain TAS for the CWA Section 303(d) Program and also develop CWA section 106 TARs to consider combining their CWA section 303(d) impaired waters list with their CWA section 106 TAR, and to submit the integrated report electronically through the Assessment TMDL Tracking and Implementation System (ATTAINS).9 ATTAINS is a database and Web site used for state reporting and displaying of CWA 303(d) and 305(b) 10 “Integrated Report” 11 and TMDL data. EPA is working with tribes on a pilot for submitting TAR information into ATTAINS.

    8Final Guidance on Awards of Grants to Indian Tribes under Section 106 of the Clean Water Act, (http://www2.epa.gov/sites/production/files/2014-09/documents/final-tribal-guidance.pdf) at page 8-1.

    9 “Water Quality Assessment and TMDL Information,” available at http://ofmpub.epa.gov/waters10/attains_index.home.

    10 CWA section 305(b) requires states to provide every two years an assessment of the quality of all their waters. EPA explicitly exempted tribes from the section 305(b) reporting requirement. 40 CFR 130.4(a); 54 FR 14354, 14357 (April 11, 1989).

    11Guidance for 2006 Assessment, Listing and Reporting Requirements Pursuant to Sections 303(d), 305(b) and 314 of the Clean Water Act, July 29, 2005, available at https://www.epa.gov/sites/production/files/2015-10/documents/2006irg-report.pdf.

    B. Establishment and Submission of TMDLs

    Under the CWA, each state and authorized tribe must, “from time to time,” establish and submit TMDLs for pollutants causing impairments in all the waters on its 303(d) list. CWA sections 303(d)(1)(C) and 303(d)(2). States and authorized tribes set priorities for developing TMDLs for their listed waters.

    TMDLs must be established “at a level necessary to implement the applicable water quality standards with seasonal variations and a margin of safety which takes into account any lack of knowledge concerning the relationship between effluent limitations and water quality.” CWA section 303(d)(1)(C). Where a TMDL makes allocation tradeoffs between point and nonpoint sources, the TMDL record must also demonstrate “reasonable assurance” that the nonpoint source allocations will be achieved. 40 CFR 130.2(i). Calculations to establish TMDLs must be subject to public review. 40 CFR 130.7(c)(1)(ii). Once established, the state or authorized tribe submits the TMDL to EPA for review.

    C. EPA Review of Lists and TMDLs

    Once EPA receives a list or TMDL, it must either approve or disapprove that list or TMDL within 30 days. CWA section 303(d)(2). If EPA disapproves the list or TMDL, EPA must establish a replacement list or TMDL within 30 days of disapproval. 40 CFR 130.7(d)(2).

    V. What are EPA's procedures for a tribe to seek TAS for the CWA Section 303(d) Impaired Water Listing and TMDL Program?

    Consistent with the statutory requirement in section 518 of the CWA, this rule establishes the procedures by which an Indian tribe may apply and qualify for TAS for purposes of the CWA Section 303(d) Impaired Water Listing and TMDL Program. Such procedures are codified in a new section 130.16 of the water quality planning and management regulation. Section 130.16 identifies (1) the criteria an applicant tribe is required to meet to be treated in a similar manner as a state, (2) the information the tribe is required to provide in its application to EPA, and (3) the procedure EPA will use to review the tribal application. Section 130.16 is intended to ensure that tribes treated in a similar manner as states for the purposes of the CWA Section 303(d) Impaired Water Listing and TMDL Program are qualified, consistent with CWA requirements, to conduct a Listing and TMDL Program. The procedures are meant to provide more opportunities for tribes to engage fully in the Program and are not intended to act as a barrier to tribal assumption of the 303(d) Program.

    The TAS procedures in this rule are closely based on the existing TAS regulation at 40 CFR 131.8, which established the TAS process for the CWA Section 303(c) WQS Program. EPA established the TAS process for WQS in 1991, and the great majority of TAS activity for regulatory programs under the CWA has occurred in the WQS Program. The WQS TAS rule has proven very effective in ensuring that applicant tribes satisfy statutory TAS criteria and are prepared to administer WQS Programs under the Act. It thus served as a useful model for this TAS rule.

    The TAS criteria tribes are required to meet for purposes of the CWA Section 303(d) Impaired Water Listing and TMDL Program originate in CWA section 518. As reflected in the regulatory language, the tribe must (1) be federally recognized and meet the definitions in sections 131.3(k) and (l), (2) carry out substantial governmental duties and powers, (3) have appropriate authority to regulate the quality of reservation waters, and (4) be reasonably expected to be capable of administering the Impaired Water Listing and TMDL Program. These criteria are discussed below.

    The first criterion for TAS requires the tribe to be federally recognized by the U.S. Department of the Interior (DOI) and meet the definitions in sections 131.3(k) and (l). The tribe may address the recognition requirement either by stating that it is included on the list of federally recognized tribes published periodically by DOI, or by submitting other appropriate documentation (e.g., if the tribe is federally recognized but is not yet included on the DOI list). The definition of “tribe” in section 131.3(l), along with requiring federal recognition, additionally requires that the tribe is exercising governmental authority over a Federal Indian reservation. “Federal Indian reservation” is defined in section 131.3(k) as “all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation.” (See further discussion of the term “reservation” in section IB of this preamble.) The governmental authority and reservation aspects of these definitions would be addressed in the tribe's application, including as part of its descriptive statements that it currently carries out substantial governmental duties and powers over a defined area, and that it has authority to regulate water quality over a reservation.

    The second criterion requires the tribe to have a governing body “carrying out substantial governmental duties and powers.” The Agency considers “substantial governmental duties and powers” to mean that the tribe is currently performing governmental functions to promote the health, safety, and welfare of the affected population within a defined geographical area. See 54 FR at 39101. Examples of such functions may include, but are not limited to, the power to tax, the power of eminent domain, and police power. Federal recognition by DOI would not, in and of itself, satisfy this criterion. EPA expects that most tribes should be able to meet this criterion without much difficulty. Id.

    To address the second criterion, the tribe is required to submit a descriptive statement demonstrating that the tribal governing body is currently carrying out substantial governmental duties and powers over a defined area. The descriptive statement should (1) describe the form of tribal government, (2) describe the types of essential governmental functions currently performed, such as those listed above, and (3) identify the sources of authorities to perform these functions (e.g., tribal constitutions and codes).

    The third criterion, concerning tribal authority, means that a tribe seeking TAS for purposes of the CWA Section 303(d) Impaired Water Listing and TMDL Program must adequately demonstrate authority to manage and protect water resources within the borders of the tribe's reservation. To verify authority and satisfy the third criterion of the rule, a tribe must include a descriptive statement of its authority to regulate water quality, which should include a statement signed by the tribe's legal counsel, or an equivalent official, explaining the legal basis for the tribe's regulatory authority, and appropriate additional documentation (e.g., maps, tribal codes, and ordinances).

    As described in EPA's May 16, 2016, interpretive rule, EPA previously took an initial cautious approach that required tribes applying for eligibility to administer regulatory programs under the CWA to demonstrate their inherent tribal authority over the relevant regulated activities on their reservations. See, e.g., 81 FR at 30185-86; 56 FR at 64877-81. This included a demonstration of inherent regulatory authority over the activities of non-tribal members on lands they own in fee within a reservation under the principles of Montana v. United States, 450 U.S. 544 (1981), and its progeny. Montana held that, absent a federal grant of authority, tribes generally lack inherent civil jurisdiction over nonmember activities on nonmember fee land, but retain inherent civil authority to regulate nonmember activities on fee land within the reservation where (i) nonmembers enter into “consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements” or (ii) “. . . [nonmember] conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Montana, 450 U.S. at 565-66.

    In addressing the second exception of Montana regarding the effects of nonmember conduct, EPA has previously described the Agency's operating approach to require—to the extent a demonstration of inherent regulatory authority is needed—a showing that the potential impacts of regulated activities on the tribe are serious and substantial. 56 FR at 64878. EPA also explained that the activities regulated under the various environmental statutes, including the CWA, generally have serious and substantial potential impacts on human health and welfare. Id. EPA described the Agency's expert assessment regarding the critical importance of water quality management to self-government and also explained that because of the mobile nature of pollutants in surface waters and the relatively small size of water bodies on reservations, it would be very likely that any water quality impairment on non-Indian fee land within a reservation would also impair water quality on tribal lands. Id. at 64878-79. EPA reiterates the generalized statutory and factual findings set forth in those prior TAS rulemakings, which apply equally to the regulation of water quality under the CWA Section 303(d) Program.

    EPA has also separately revised its interpretation of the CWA tribal provision by conclusively determining that Congress intended to delegate authority to eligible tribes to regulate their entire reservations under the CWA irrespective of land ownership. In prior CWA TAS promulgations, EPA recognized that there was significant support for the view that Congress had intended to delegate authority to eligible Indian tribes to administer CWA regulatory programs over their entire reservations, irrespective of land ownership, and EPA expressly stated that the issue of tribal authority under the CWA remained open for further consideration in light of additional congressional or judicial guidance. See, e.g., 56 FR at 64878-81. On May 16, 2016, as part of an entirely separate regulatory action, EPA published in the Federal Register a rule to reinterpret the CWA tribal provision as including such an express delegation of authority by Congress. 81 FR 30183. Under that reinterpretation, applicant Indian tribes are no longer required to demonstrate inherent authority to regulate their reservation waters under the CWA. Among other things, tribes are thus no longer required to meet the test established in Montana v. United States, 450 U.S. 544 (1981), and its progeny with regard to exercises of inherent tribal regulatory authority over nonmember activity. Id. Instead, under that reinterpretation, absent rare circumstances that may affect a tribe's ability to effectuate the delegation of authority, a tribe is able to rely on the congressional delegation of authority included in section 518 of the statute as the source of authority to administer CWA regulatory programs over its entire reservation as part of its legal statement. Id.

    In the preamble to the proposed 303(d) TAS rule, EPA noted that the proposed rule intended to provide appropriate TAS application and review procedures irrespective of which interpretation of tribal authority under the Act applies. As explained in EPA's reinterpretation of section 518, EPA's existing TAS regulations—including 40 CFR 131.8, upon which this rule is modeled—accommodate either interpretation of tribal authority under the CWA and provide appropriate application procedures to ensure that relevant jurisdictional information is provided to EPA and made available for comment. 80 FR 47430. The same is true of this rule, which establishes procedures needed to fill the gap in TAS regulatory infrastructure for the CWA Section 303(d) Program. Now that the May 16, 2016, interpretative rule is finalized, the revised interpretation would be applied in the context of EPA's review of a TAS application submitted under these CWA section 303(d) regulations. Finalization of these procedural regulations, however, is a separate and distinct regulatory action from the reinterpretation and is not based upon, nor does it depend upon that earlier action.

    The fourth criterion requires that the tribe, in the Regional Administrator's judgment, be reasonably expected to be capable of administering an effective CWA Section 303(d) Impaired Water Listing and TMDL Program. To meet this requirement, tribes should either (1) show that they have the necessary management and technical skills or (2) submit a plan detailing steps for acquiring the necessary management and technical skills. When considering tribal capability, EPA will also consider whether the tribe can demonstrate the existence of institutions that exercise executive, legislative, and judicial functions, and whether the tribe has a history of successful managerial performance of public health or environmental programs.

    The specific information required for tribal applications to EPA is described in section 130.16 (a) and (b). The application must, in general, nclude a statement regarding federal recognition by DOI, documentation that the tribal governing body is exercising substantial duties and powers, documentation of authority to regulate water quality on the reservation, a narrative statement of tribal capability to administer the CWA Section 303(d) Impaired Water Listing and TMDL Program, and any other information requested by the Regional Administrator.

    Consistent with EPA's other TAS regulations, the rule also provides that where a tribe has previously qualified for TAS for purposes of a different EPA program, the tribe need only provide the required information that has not been submitted as part of a prior TAS application. To facilitate review of tribal applications, EPA requests that a tribe, in its application, inform EPA whether the tribe has been approved for TAS or deemed eligible to receive authorization for any other EPA program. See 59 FR at 64340.

    The TAS application procedures and criteria for the CWA Sections 303(c) WQS and 303(d) Impaired Water Listing and TMDL Programs are similar in many respects, and a tribe interested in both programs may wish to streamline the application process by combining a request for TAS eligibility for 303(c) and 303(d) into a single application. Although a tribe is not required to do so, EPA's approach allows a tribe to submit a combined application, which addresses the criteria and application requirements of sections 131.8 and 130.16, to EPA if the tribe is interested in applying for TAS for both the CWA Section 303(c) and 303(d) Programs.

    VI. What special circumstances may exist regarding qualification for TAS for the CWA Section 303(d) Impaired Water Listing and TMDL Program?

    There could be rare instances where special circumstances limit or preclude a particular tribe's ability to be authorized to administer the 303(d) Program over its reservation. For example, there could be a separate federal statute establishing unique jurisdictional arrangements for a specific state or a specific reservation that could affect a tribe's ability to exercise authority under the CWA. It is also possible that provisions in particular treaties or tribal constitutions could limit a tribe's ability to exercise relevant authority.12

    12 EPA takes no position in this rule regarding whether any particular tribe or Indian reservation is subject to any potential impediment relating to authority to take on the 303(d) Program. Any such issue would need to be addressed on a case-by-case basis and with the benefit of a full record of relevant information that would be developed during the processing of a particular TAS application. To the extent EPA is ever called upon to make a decision regarding this type of issue, such a decision would be rendered in the context of EPA's final action on a specific TAS application, and any judicial review of that decision would occur in that context.

    Under section 130.16(b), which requires tribal applicants to submit a statement describing their authority to regulate water quality, EPA encourages tribes to include a statement of their legal counsel (or equivalent official) describing the basis for their assertion of authority. The statement can include copies of documents such as tribal constitutions, by-laws, charters, executive orders, codes, ordinances, and resolutions. The provision for a legal counsel's statement is designed to ensure that applicant tribes appropriately describe the bases of their authority and address any special circumstances regarding their assertion of authority to administer the 303(d) Program. The rule provides an appropriate opportunity for “appropriate governmental entities” (i.e., states, tribes and other federal entities located contiguous to the reservation of the applicant tribe) to comment on an applicant tribe's assertion of authority and, among other things, inform EPA of any special circumstances that they believe could affect a tribe's authority to administer the 303(d) Program.

    EPA is also aware that section 10211(b) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005 (“SAFETEA”), Public Law 109-59, 119 Stat. 1144 (August 10, 2005) established a unique TAS requirement with respect to Indian tribes located in the State of Oklahoma. Under section 10211(b) of SAFETEA, tribes in Oklahoma seeking TAS under a statute administered by EPA for the purpose of administering an environmental regulatory program must, in addition to meeting applicable TAS requirements under the relevant EPA-administered environmental statute, enter into a cooperative agreement with the state that is subject to EPA approval and that provides for the tribe and state to jointly plan and administer program requirements. This requirement of SAFETEA applies apart from, and in addition to, existing TAS eligibility criteria, including the TAS criteria set forth in section 518 of the CWA. This rule relates solely to the CWA TAS requirement; it thus has no effect on the separate requirement of section 10211(b) of SAFETEA.

    What is EPA's position on certain public comments regarding special circumstances?

    EPA received several comments asserting that special circumstances limit particular tribes' ability to obtain TAS for the CWA 303(d) Program. For instance, one state asserted that, under federal law specific to that state, the state has primary regulatory authority and jurisdiction for environmental programs throughout the state, including over Indian territories and waters. The state requested that EPA confirm that in this state, a tribe would not be eligible to attain TAS for the 303(d) Program or any other CWA regulatory program. One state asserted that a tribe located in the state is precluded by federal statute specific to that tribe from regulating reservation land that is owned in fee by non-tribal citizens. An industry commenter asserted that the tribe where its facility is located entered into a binding agreement waiving regulatory authority over the commenter's facility, and accordingly, making the tribe ineligible to assert jurisdiction over the facility for CWA purposes.

    EPA appreciates the information about special circumstances provided in the comments. Importantly, the precise outcome of any such circumstance could only be determined in the context of a particular tribe's TAS application and upon a full record of information addressing the issue. The substance of these specific situations is thus outside the scope of—and is not affected by—this rule. This rule only establishes criteria and a process for tribes to apply for TAS for the 303(d) Program; it does not adjudicate the outcome of that process for any particular tribe. However, EPA notes that the comments are both illustrative and instructive regarding the types of special circumstances and jurisdictional issues that may affect a tribe's ability to obtain TAS for the 303(d) Program. Federal statutes other than the CWA may, for instance, limit a particular tribe's or group of tribes' ability to participate, in whole or in part, in CWA regulation through the TAS process. Before approving a tribe's TAS eligibility, EPA would carefully consider whether any binding contractual arrangements or other legal documents such as tribal charters or constitutions might affect the tribe's regulatory authority generally, or with regard to any specific members of the regulated community. Finally, under this rule—and consistent with TAS requirements for other regulatory programs—the geographic scope of the reservation boundaries over which a tribe asserts authority would continue to be a relevant and appropriate issue for consideration in the TAS process. Sections 130.16(b)(3) and (c)(2) of this rule require applicant tribes to address these types of issues in their jurisdictional statements and provide states and other appropriate entities an appropriate opportunity to comment and inform EPA of any potential impediments to tribal regulatory authority. These comment opportunities help ensure that EPA's decision making is well informed.

    EPA also received comments on the proposed rule from the State of Oklahoma regarding section 10211(b) of SAFETEA. In its comments, the State of Oklahoma requested additional information regarding the process or sequence of events that will be used to ensure that this provision of SAFETEA is satisfied in the context of particular tribal TAS applications that may be submitted following finalization of this rule. EPA notes that section 10211(b) expressly contains certain procedural requirements—i.e., the state/tribal cooperative agreement must be subject to EPA review and approval after notice and an opportunity for public hearing. Nothing in this rule alters or affects those requirements. Further, because the SAFETEA requirement must be satisfied for a tribe in Oklahoma to obtain TAS to regulate under an EPA statute, the final cooperative agreement must be fully executed and approved by EPA before EPA can approve a 303(d) TAS application. Because the State of Oklahoma is a required signatory to the agreement, this sequence of events ensures that the State will have a full opportunity to participate in the TAS process—separate from opportunities that states have through EPA's TAS notice and comment procedures. Nothing in this rule alters or affects Oklahoma's participation in the SAFETEA cooperative agreement or the requirement that the agreement be in place as a prerequisite to TAS for the 303(d) Program. EPA notes that there are no regulations establishing procedures for the State and applicant tribes to negotiate SAFETEA cooperative agreements or for tribes to submit, and EPA to review, such agreements. There is thus flexibility for the State and applicant tribes in Oklahoma to work together to develop these agreements as they deem appropriate.

    VII. What procedure will EPA follow in reviewing a tribe's TAS application? A. Notice to Appropriate Governmental Entities

    The EPA review procedure, included in section 130.16(c), specifies that the Regional Administrator, following receipt of tribal applications, will process such applications in a timely manner. EPA will promptly notify the tribe that the complete application has been received. Within 30 days after receipt of a tribe's complete TAS application for 303(d), EPA will provide notice to appropriate governmental entities (i.e., states, tribes, and other federal entities located contiguous to the reservation of the applicant tribe) of the complete application and the substance of and basis for the tribe's assertion of authority over reservation waters, and will provide a 30-day opportunity to comment to EPA on the tribe's assertion of authority. See, e.g., 56 FR at 64884. EPA will also provide, consistent with prior practice, sufficiently broad notice (e.g., through local newspapers, electronic media, or other appropriate media) to inform other potentially interested entities of the applicant tribe's complete application and of the opportunity to provide relevant information regarding the tribe's assertion of authority. As described below, EPA's notice and comment procedure applies unless such process would be duplicative of a notice and comment process already performed in connection with EPA's approval, after the effective date of this rule, of the same tribe's prior application for TAS for another CWA regulatory program.

    B. Avoidance of Duplicative Notice and Comment Procedures

    In this rule, EPA includes provisions intended to help avoid unnecessary and wasteful duplication of the notice and comment procedures described in section VII.A. Specifically, the rule (section 130.16(c)(4)) provides that, where a tribe has previously qualified for TAS for a CWA regulatory program 13 and EPA has provided notice and an opportunity to comment on the tribe's assertion of authority as part of its review of the prior application, no further notice would be provided with regard to the same tribe's application for the 303(d) Program, unless the section 303(d) TAS application presents different jurisdictional issues or significant new factual or legal information relevant to jurisdiction to the Regional Administrator.

    13 Specifically, the CWA Section 303(c) WQS Program, CWA Section 402 NPDES Program or Sewage Sludge Management Program, or CWA Section 404 Dredge and Fill Permit Program.

    Where different jurisdictional issues or information are not present, additional notice and comment regarding the tribe's assertion of jurisdiction would be duplicative of the process already undertaken during EPA's review of the prior TAS application. Under these circumstances, the rule avoids such duplication of efforts by providing that the relevant EPA Regional Administrator will process a TAS application for the 303(d) Program without a second notice and comment process.

    Where different jurisdictional issues or new or changed information are present, the notice and comment process described in section 130.16(c)(2) applies. For example, if the geographic reservation area over which an applicant tribe asserts authority is different from the area covered by a prior TAS application or EPA approval, the process in section 130.16(c)(2) applies and provides an appropriate opportunity for comment on the tribe's assertion of authority over the new area. In such circumstances, a tribe may find it appropriate and useful to update its prior TAS application at the same time it applies for TAS for 303(d). This would help ensure that the tribe's TAS eligibility for the various CWA programs covers the same geographic area. Such a combined TAS application would be subject to the section 130.16(c)(2) notice and comment process.

    This approach applies prospectively only, i.e., where the tribe obtains TAS for the CWA Section 303(c) WQS Program, CWA Section 402 NPDES Program or Sludge Management Program, or CWA section 404 dredge and fill Permit Program after the effective date of this rule. In other words, if a tribe first gains TAS for 303(c) or another CWA regulatory program after this rule is finalized, and subsequently seeks TAS for the 303(d) Program, additional notice and comment would not be required as part of the 303(d) TAS application unless different jurisdictional issues or significant new factual or legal information relevant to jurisdiction are presented in the 303(d) application. However, if a tribe had been approved for TAS only for 303(c) or another CWA program prior to the effective date of this rule, the notice and comment procedures of section 130.16(c)(2) will apply. Further notice and comment may not be necessary, for example, where a tribe has been approved for a TAS application for 303(c) (WQS) after the effective date of this rule, and then subsequently applies for TAS for the 303(d) Program. If that tribe had previously demonstrated that it may effectuate the congressional delegation of authority for a CWA regulatory program, and the tribe is applying for the same geographic area, a new notice and comment procedure generally would not be needed for the 303(d) TAS. A tribe in this circumstance might note in its 303(d) TAS application that it is applying for the same geographic scope and using the same legal basis as the previous CWA TAS regulatory approval.

    EPA notes that the notice and comment procedures (and the exemption thereto) described in this rule relate solely to tribal assertions of authority as part of TAS applications. They do not address any issues relating to notice and comment on section 303(d) lists and TMDLs associated with 303(d) Program implementation by a TAS-eligible tribe.

    1. What did EPA consider regarding the notice and comment exemption?

    In the proposed rule, EPA proposed to apply this exemption generally—that is, to all tribal applications that meet the exemption criteria even if the earlier CWA TAS approval occurred prior to the finalization of the 303(d) TAS rule. EPA requested comment on its proposed exemption and alternative approaches. In addition, we requested comment on whether the section 130.16(c)(4) notice and comment exemption should instead be available only prospectively—i.e., only where the applicant tribe obtains TAS for the CWA Section 303(c) WQS Program, CWA Section 402 NPDES Program or Sewage Sludge Management Program, or CWA Section 404 Dredge and Fill Permit Program after the rule is finalized (and, again, only if different jurisdictional issues or significant new factual or legal information relevant to jurisdiction are not present in the tribe's 303(d) TAS application). EPA also considered not providing such a notice and comment exemption, regardless of whether tribes have obtained TAS for other CWA regulatory programs.

    2. What is EPA's position on certain public comments regarding notice and comment?

    EPA received several comments on the proposed notice and comment approach, including from several tribes, several states, one local government, and one non-governmental organization. The tribal commenters generally expressed support for the proposed approach, noting that tribes that have TAS approval for another CWA program should not have to go through additional delay for a duplicative notice and comment process. Two tribal commenters also noted that the approach should not be limited to prospective applications, with one commenter asserting that anyone with objections to previous applications already had an opportunity to express those concerns. States, local entities, and industry generally opposed the proposed streamlined notice and comment approach. One state asserted that states should have an opportunity to comment on all applications, regardless of previous TAS applications. One state commenter, while generally opposed to the approach, indicated that the approach at a minimum should be applied prospectively only. One state asserted that the proposed approach would not provide an opportunity to have input to the development of a new tribal program. Another state noted that the public should have an opportunity to comment on a program such as 303(d) that may have more direct and broader public implications than other TAS programs. One state commenter supported the proposed approach, but said that it should be applied prospectively only. A local government and a nongovernmental organization asserted that the approach limits due process and expands tribal control over non-tribal persons and lands.

    EPA agrees with the commenters who supported the proposed approach as an effective and efficient means to ensure appropriate notice procedures on tribal assertions of authority in 303(d) TAS applications, while avoiding unnecessary and wasteful duplication. EPA also appreciates, but disagrees with, the comments that additional notice and comment should be required, regardless of previous CWA TAS applications. As discussed previously, where different jurisdictional issues or information are not present, additional notice and comment procedures would be duplicative of the process already undertaken during EPA's review of a prior TAS application. Eliminating unnecessary burdens is consistent with longstanding EPA and Executive policy to support tribal self-determination and promote and streamline tribal involvement in managing and regulating their lands and environments. See, e.g., Executive Order 13175, 65 FR 67249, November 9, 2000; Presidential Memorandum: Government-to-Government Relations with Native American Tribal Governments, 59 FR 22951, April 29, 1994; EPA Policy for the Administration of Environmental Programs on Indian Reservations, November 8, 1984.14 This rule thus maintains the notice and comment exemption in section 130.16(c)(4).

    14EPA Policy for the Administration of Environmental Programs on Indian Reservations, November 1984, available at https://www.epa.gov/tribal/epa-policy-administration-environmental-programs-indian-reservations-1984-indian-policy.

    EPA also notes that the notice and comment procedures described in this rule are not required by the CWA or other federal law. Instead, they are provided by EPA as a matter of the Agency's discretion to ensure that EPA's decision making on tribal assertions of authority in TAS applications is well-informed, including by any relevant information that may be made available by appropriate governmental entities.

    EPA has, however, decided to make the notice and comment exemption available only prospectively. Limiting the notice and comment exemption to prospective applications is appropriate because the notice and comment exemption will not provide any streamlining benefit to tribes with prior CWA TAS approvals in light of EPA's recent publication of an interpretive rule revising the Agency's approach to tribal jurisdiction under the CWA. Revised Interpretation of Clean Water Act Tribal Provision, 81 FR 30183 (May 16, 2016). In the interpretive rule, EPA announced the Agency's conclusion that section 518 of the CWA includes a delegation of authority from Congress to eligible tribes to regulate waters throughout their reservations under the statute, irrespective of who owns the relevant reservation area. This revised interpretation thus eliminated the need for tribes seeking TAS for the purpose of administering a CWA regulatory program to demonstrate their inherent authority to regulate reservation water resources under principles of federal Indian law. To date, all of the tribes that have been approved by EPA for eligibility to administer a CWA regulatory program were approved consistent with EPA's prior (pre-interpretive rule) approach to tribal jurisdiction. Because the interpretive rule revised EPA's approach to tribal jurisdiction, new TAS applications for a CWA regulatory program, including the 303(d) Program, will proceed under the revised interpretation, thus presenting a different jurisdictional issue than prior applications. Even if EPA opted to apply the notice and comment exemption retrospectively, the procedures of section 130.16(c)(2) would apply in all such cases because the circumstances authorizing the exemption of section 130.16(c)(4) will be absent. Applying the exemption retrospectively would not provide the intended streamlining benefit, given the existence of different jurisdictional issues. Going forward, however, EPA will apply the exemption per the provisions in section 130.16(c)(4).

    C. Treatment of Competing or Conflicting Claims

    Where a tribe's assertion of authority is subject to a competing or conflicting claim, the procedures in this rule provide that the Regional Administrator, after due consideration and in consideration of any other comments received, will determine whether the tribe has adequately demonstrated authority to regulate water quality on the reservation for purposes of the 303(d) Program. Where the Regional Administrator concludes that a tribe has not adequately demonstrated its authority with respect to an area in dispute, then tribal assumption of the CWA Section 303(d) Impaired Water Listing and TMDL Program may be restricted accordingly. If a dispute is focused on a limited area, this would not necessarily delay EPA's decision to treat the tribe in a similar manner as a state for non-disputed areas.

    This procedure does not imply that states, tribes, other federal agencies, or any other entity have veto power over tribal TAS applications. Rather, it is intended to assist EPA in gathering information that may be relevant to the Agency's determination whether the applicant tribe has the necessary authority to administer the CWA Section 303(d) Impaired Water Listing and TMDL Program. EPA will consider comments but will make an independent evaluation of the tribal showing.

    D. EPA's Decision Process

    The rule requires EPA to process a tribe's TAS application in a timely manner, but does not specify a precise time frame for review of tribal TAS applications. Each TAS application will present its own set of legal and factual issues, and EPA anticipates that in some cases it may be necessary to request additional information when examining tribal TAS applications. Similarly, the Agency's experience with states applying for various EPA programs and with tribes applying for TAS for the WQS Program indicates that additional engagement between EPA and the applicant may be necessary before final decisions are made. EPA expects that similar exchanges with tribes will often be helpful and enhance EPA's processing of tribal TAS applications for the CWA Section 303(d) Impaired Water Listing and TMDL Program.

    Where the Regional Administrator determines that a tribal TAS application satisfies the requirements of section 130.16(a) and (b), the Regional Administrator will promptly notify the tribe that the tribe has qualified for TAS for the CWA Section 303(d) Impaired Water Listing and TMDL Program. A decision by the Regional Administrator that a tribe does not meet the requirements for TAS for purposes of the CWA Section 303(d) Impaired Water Listing and TMDL Program would not preclude the tribe from resubmitting an application at a future date. If the Regional Administrator determines that a tribal application is deficient or incomplete, EPA will identify such deficiencies and gaps so the tribe can make changes as appropriate or necessary.

    VIII. What are EPA's expectations regarding WQS and WQS TAS as prerequisites for tribes applying for TAS authority for the 303(d) Program?

    This final rule does not require tribes to have applicable WQS in place for their reservation waters prior to applying for TAS eligibility for the 303(d) Program. The rule also does not require tribes seeking TAS eligibility for the 303(d) Program to have previously obtained EPA approval for TAS for the WQS Program. Under section 303(d), however, states and authorized tribes must develop lists of impaired waters and TMDLs based on applicable WQS. CWA sections 303(d)(1) and (2). Accordingly, EPA expects that the tribes most likely to be interested in applying for TAS for the 303(d) Program will be those that also have TAS for CWA section 303(c) and have applicable WQS for their reservation waters. EPA has taken final action approving TAS for WQS for 53 tribes. Forty-two of those tribes have EPA-approved WQS, and one tribe without TAS for WQS has EPA-promulgated WQS.15 These tribes will already have demonstrated an interest in directly administering certain fundamental elements of the CWA as well as the capacity to do so.

    15 EPA maintains a current list of authorized tribes and tribal WQS approvals at https://www.epa.gov/wqs-tech/epa-approvals-tribal-water-quality-standards.

    Since applicable WQS are a foundation of the CWA's water quality-based approach to protecting our nation's waters, EPA recommends that establishing EPA-approved/EPA-promulgated WQS for reservation water bodies is an important first step for tribes interested in protecting and restoring their reservation waters. As tribes gain experience developing and administering applicable WQS on their reservations, they may become interested in greater involvement in additional CWA programs—such as the 303(d) Program—designed to ensure that applicable WQS are achieved. Obtaining TAS to implement a CWA Section 303(d) Impaired Water Listing and TMDL Program for its reservation waters is one potential next step for interested tribes.

    Table 1 is an example of a step-wise approach that tribes may follow in developing their water quality programs under the CWA and ultimately seeking TAS for the CWA Section 303(d) Impaired Water Listing and TMDL Program. This is only one possible approach. Many of the identified steps could be completed in parallel rather than sequentially. In particular, this approach does not preclude a tribe from seeking TAS for the 303(d) Program, either separately or concurrently with TAS for the WQS Program.

    Table 1—Example of a Step-Wise Approach to Regulatory Activities for Tribes Interested in Applying for TAS Authority To Implement the CWA Section 303(d) Impaired Water Listing and TMDL Program Step 1: Tribe seeks TAS for CWA 303(c) WQS • Tribe decides to evaluate and address water quality within its reservation by establishing WQS under the CWA. • Tribe identifies and inventories reservation water bodies. • Tribe applies for TAS for WQS. • EPA approves tribe's TAS application. Step 2: Tribe Adopts WQS • Tribe develops its water quality goals. • Tribe drafts and adopts WQS and submits for EPA approval. • EPA approves tribal WQS. Step 3: Tribe seeks TAS for CWA Section 303(d) Impaired Water Listing and TMDL Program • Tribe decides to assess water quality conditions against applicable WQS (i.e., comparing water quality monitoring data and information against applicable WQS), identify impaired waters, and develop TMDLs. • Tribe applies for TAS to implement a 303(d) Program under the CWA. • EPA approves TAS for 303(d). Step 4: Tribe implements the CWA Section 303(d) Impaired Water Listing and TMDL Program Tribe conducts activities identified in 40 CFR 130.7, including but not limited to: • Assembles and evaluates all existing and readily available water quality-related data and information on reservation water bodies. • Develops section 303(d) list of impaired waters (that is, reservation water bodies that do not meet or are not likely to meet applicable WQS). • Prioritizes list of impaired water bodies for TMDL development. • Submits section 303(d) list to EPA for approval. • Develops TMDLs for listed waters. • Submits TMDLs to EPA for approval. Step 5: Tribe implements TMDLs (not required by 40 CFR 130.7) • Tribe carries out watershed-specific plans and actions to implement TMDLs. • Tribe monitors TMDL implementation and effectiveness. Step 6: Tribe seeks other CWA regulatory programs Possibilities include: • CWA Section 402 NPDES Program. • CWA Section 405 Sewage Sludge Management Program. • CWA Section 404 Dredge and Fill Permit Program. A. What did EPA consider regarding WQS and WQS TAS as prerequisites for 303(d) TAS?

    In the proposed rule, EPA did not propose to require tribes to have CWA-applicable WQS—i.e., either approved by EPA or promulgated by EPA—in place on their reservations prior to applying for TAS eligibility under CWA section 518 for purposes of administering the 303(d) Program. This approach is consistent with other CWA and EPA programs, which authorize tribes to seek TAS eligibility without requiring as a prerequisite the existence of any separate EPA-approved tribal environmental programs. Because the listing of waters and development of TMDLs under section 303(d) must be based on applicable WQS (see CWA sections 303(d)(1) and (2)), EPA specifically invited public comment in the proposed rule on whether applicable WQS should instead be a prerequisite for obtaining TAS eligibility for the CWA Section 303(d) Impaired Water Listing and TMDL Program. EPA also invited public comment on whether a tribe applying for TAS for the 303(d) Program should be required to have already received EPA approval—or at least simultaneously apply—for TAS for the CWA Section 303(c) WQS Program.

    B. What is EPA's position on certain public comments regarding WQS and WQS TAS as prerequisites for 303(d) TAS?

    EPA received comments on this topic from several tribes and tribal organizations, as well as several states. Two tribal organizations and one tribe asserted that applicable WQS should not be required prior to a tribe applying for TAS for the 303(d) Program. One of these tribal commenters reasoned that developing WQS requires time and should not be a barrier to tribes seeking 303(d) TAS. Another tribe asserted that WQS should not be required, in order to allow for an expedited process for a tribe seeking 303(d) TAS. One tribe commented that WQS should be required because lists of impaired waters must be based on applicable WQS. Five states asserted that WQS should be required because lists must be based on applicable WQS. One of these states also commented that both WQS and TAS for 303(c) should be required. Another state commented that resources would be wasted by tribes developing applications, and by the government in reviewing applications, for a program that tribes cannot implement without WQS.

    EPA also received comments on whether a tribe should have TAS for 303(c) before applying for 303(d) TAS, or at least apply concurrently for 303(c) and 303(d) TAS. Two tribes asserted that TAS for 303(c) should not be a requirement in order for a tribe to seek 303(d) TAS. Two states supported the opposite position: That TAS for 303(c) should be in place before a tribe applies for 303(d) TAS. Another state also asserted that tribes should apply for 303(c) TAS prior to, or at least concurrent with, their application for 303(d) TAS.

    EPA agrees with the commenters that WQS are the basis for the development of impaired waters lists and TMDLs. See sections 303(d)(1) and (2). As discussed in Section IV, under section 303(d) of the CWA, every two years authorized tribes would be required to develop lists of waters not meeting, or not expected to meet, applicable water quality standards. 40 CFR 130.7(d). Impaired waters are waters for which technology-based limitations and other required controls are not stringent enough to meet applicable CWA water quality standards. Under section 303(d), a tribe would use applicable WQS as the basis for identifying impaired waters and calculating TMDLs, which quantify the maximum amount of a pollutant that a water body can receive and still meet the WQS.

    Although 303(d) lists and TMDLs are developed based on applicable WQS, EPA disagrees that the Agency should impose a regulatory requirement that such WQS must be in place before a tribe can apply under section 518 for 303(d) TAS eligibility. Similarly, EPA disagrees that the Agency should impose a regulatory requirement that a tribe must have TAS for 303(c) prior to applying for 303(d) TAS. This rule establishes the process for a tribe to seek TAS for the 303(d) Program. The process of applying for 303(d) TAS eligibility under section 518 is a separate step distinct from the process of implementing section 303(d) through the development of 303(d) lists or TMDLs. The TAS review focuses on the applicant tribe's governmental functions, authority, and capability to administer the program. Approval of the tribe's TAS application does not, by itself, allow the tribe to submit lists of impaired waters and establish TMDLs. Authorizing tribes to seek TAS eligibility in the absence of applicable WQS thus creates no conflict with the CWA requirement that such WQS provide the basis for 303(d) lists and TMDLs. Once a tribe has TAS for the 303(d) Program, the tribe would still be required to develop lists and TMDLs on the basis of applicable WQS, once they are in place. In addition, the 303(d) TAS application process is designed to provide an opportunity for tribes to begin to engage with the 303(d) Program. . . . EPA does not intend for it to act as a barrier. Requiring applicable WQS as a prerequisite to a TAS application would establish an unnecessary barrier to tribes seeking TAS eligibility for the 303(d) Program. See, e.g., EPA Policy for the Administration of Environmental Programs on Indian Reservations, November 8, 1984 and Executive Order 13175, 65 FR 67249, November 9, 2000.

    EPA notes that, under this approach, tribes seeking and obtaining 303(d) TAS eligibility will have ample opportunity to develop and seek EPA approval or establishment of WQS that would be the basis for section 303(d) implementation. This rule takes into consideration the time needed for development of WQS. As indicated in section 130.16(c)(5) of this rule, an authorized tribe's first impaired waters list must be submitted to EPA on the next listing cycle due date that is at least 24 months from the later of: (1) The date the tribe's TAS application for 303(d) is approved or (2) the date EPA-approved/promulgated WQS for the tribe's waters are effective.

    Similarly, making TAS for section 303(c) a requirement for tribes seeking TAS for 303(d) would be unduly restrictive of tribal options regarding the development of WQS and implementation of the 303(d) Program. As discussed, eligible tribes may develop lists or TMDLs under 303(d) based on any WQS that are “applicable” under the Act. “Applicable” WQS include EPA-approved tribal WQS as well as those promulgated by EPA. See CWA sections 303(d)(1) and (2). Thus, a tribe may reasonably decide to seek TAS for section 303(d) now to prepare itself to develop lists and TMDLs in anticipation of having either EPA-approved tribal or EPA-promulgated WQS in place at a later date. Requiring a tribe to apply for and receive 303(c) TAS to develop its own WQS would be an unnecessary step for a tribe seeking to develop lists and TMDLs based on EPA-promulgated WQS. In fact, requiring a tribe to have 303(c) TAS prior to seeking 303(d) TAS would prevent a tribe from choosing to implement federal WQS under section 303(d), without also unnecessarily expending resources to pursue 303(c) TAS.

    Finally, although EPA expects that the tribes most likely to be interested in applying for TAS for section 303(d) will be those that also have TAS for section 303(c) and have applicable WQS, the rule should not preclude other tribes from obtaining TAS status for section 303(d), and thus ensuring that TAS eligibility requirements are satisfactorily addressed prior to expending resources on developing WQS. While one commenter asserted that resources would be wasted on 303(d) applications in the absence of tribal WQS, EPA disagrees and concludes that the approach finalized in this rule will allow tribes, at their discretion, to streamline and minimize expenditures on TAS procedures. For example, a tribe could combine TAS requests for sections 303(c) and 303(d) into a single application—an option that EPA encourages, but does not require. Requiring that WQS be in place prior to applying for 303(d) TAS would eliminate the ability for tribes to streamline their TAS applications by applying concurrently for 303(c) and 303(d) TAS. In any event, questions regarding how best to expend tribal resources and to organize and address tribal environmental priorities in pursuing eligibility for CWA programs should be left to the sovereign decision making of tribal governments.

    IX. What financial and technical support is available from EPA to tribes as they choose to develop and implement a CWA Section 303(d) Impaired Water Listing and TMDL Program?

    Pre-proposal input from tribes indicated that resources and funding available for TMDL development would be important considerations for tribes in deciding whether to apply for TAS for CWA section 303(d) purposes. During the public comment period, EPA also received comments from tribes reiterating the importance of funding and technical assistance for tribes interested in TAS for the 303(d) Program. As noted in section XI.F of the preamble to this rule, EPA considered tribal comments in developing this final rule, and intends to remain sensitive to tribal resource issues in its budgeting and planning process. EPA understands the tribes' resource concerns, but observes that the Impaired Water Listing and TMDL Program is not a grant program, and no federal grant funds are available directly from the Impaired Water Listing and TMDL Program. A tribe may be able to use its General Assistance Program (GAP) Grant under the Indian Environmental General Assistance Program Act to support development of a section 303(d) Program and capacity to implement such a program, but GAP funds are not available for ongoing 303(d) Program implementation. Tribes interested in using GAP funds should contact their Regional GAP Program coordinator. In addition, other potential sources of tribal funding, such as CWA section 319 grants and section 106 grants, are already tightly constrained and may not be available to support additional work under section 303(d). Some tribes that receive CWA funding may be able to identify program activities that could also support 303(d) activities (e.g., assessing water quality to develop impaired water lists), but the availability of such funding opportunities is uncertain.

    As resources allow, EPA may be able to work cooperatively with tribes, as appropriate, on impaired water listing and TMDL issues in Indian country. For example, EPA intends to develop training and/or provide other technical support to tribes interested in obtaining TAS for 303(d) and implementing a CWA Section 303(d) Impaired Water Listing and TMDL Program if EPA staff and other resources are available to do so. As a general matter, however, EPA cannot assure that funding will be available for a tribe to develop or implement the 303(d) Program; a tribe considering whether to apply to administer the Program should carefully assess its priorities and the availability of EPA assistance or other resources.

    X. What is EPA's position on certain other public comments received?

    In this section, EPA responds to several additional topics that were raised in public comments.

    A. Impact on State/Local Authority for CWA Programs

    EPA received several comments regarding the impact of the rule on local and state authority over water quality programs. One state commented that the rule should clarify the meaning of “within the borders of the Indian reservation” to reflect that a state may have legal holdings within the exterior border of a reservation that do not qualify as Indian land. One local government commented that the proposed rule supplants the role of state and local governments in managing county or municipal waters on Indian reservations, and tribal jurisdiction applies only to federal trust parcels. The local government commenter also asserted that states, counties, and municipalities are complying with section 303(d) and therefore there is no need to expand tribal government involvement. The commenter further asserted that the rule would exacerbate state-tribal jurisdictional issues. A local water organization also commented that the rule supplants state and local authority, asserting that only the state has regulatory authority over water in the states.

    EPA appreciates these comments and wishes to clarify that this rule has no effect on the scope of existing state implementation of section 303(d). Generally speaking, civil regulatory authority in Indian country lies with the federal government and the relevant Indian tribe, not with the states. See, e.g., Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S. 520, 527 n.1, 1998. In the absence of an express demonstration of authority by a state for such areas, and an EPA finding that the state has authority for those Indian country waters, EPA has generally excluded Indian country from its approvals of state regulatory programs under the CWA and excluded waterbodies in Indian country from its approval of state 303(d) lists and TMDLs.

    This rule relates solely to the process for tribes to seek TAS for the purpose of administering CWA section 303(d) over their reservation waters; it has no effect on the scope of existing CWA regulatory programs administered by states. It neither diminishes nor enlarges the scope of such approved state programs.

    There are uncommon situations where a federal statute other than the CWA grants a state jurisdiction to regulate in areas of Indian country. For example, in a few cases EPA has approved states to operate CWA regulatory programs in areas of Indian country where the states demonstrated jurisdiction based on such a separate federal statute. This rule does not address or affect such jurisdiction that other federal statutes may provide to states.

    B. Relation to May 16, 2016, Interpretive Rule

    Several of the comments EPA received on the proposed rule raised issues relating to EPA's separate interpretive rule revising the Agency's approach to tribal jurisdiction under the CWA. The interpretive rule was pending at the time EPA received these comments, but the rule has since been finalized. 81 FR 30183. One commenter supported the interpretive rule and asked EPA to cross-reference it in the 303(d) TAS rule. One state asked how the interpretive rule would be applied where there is state-specific law addressing unique issues arising in that state. Two states, one local government, and two industry commenters expressed opposition to the interpretive rule. Reasons for opposing the re-interpretation included objections to tribal jurisdiction over non-member activities and concern regarding impacts on state CWA programs.

    EPA appreciates the issues raised by the commenters but notes that any questions or comments regarding the interpretive rule are outside the scope of this final rule. This rule relates solely to the procedures that will apply to tribal applications for TAS for the section 303(d) Program and to EPA's review of such applications. This rule thus fills a gap in TAS infrastructure, and fulfills the requirement of CWA section 518(e) that EPA promulgate final regulations specifying how tribes shall be treated as states for purposes of section 303(d). This rule provides appropriate TAS procedures irrespective of which interpretation of tribal jurisdiction applies. The rulemaking itself neither adopts, nor implements, any particular approach to tribal jurisdiction. It simply provides a process for tribes to apply for TAS, and for EPA to review such applications (with relevant input from appropriate governmental entities and others). Any application of EPA's revised approach to tribal jurisdiction under section 518 as described in the final interpretive rule would occur in the context of EPA's final decision on a particular tribe's TAS application for a CWA regulatory program, in this case the 303(d) Program. EPA also notes that the issues raised by commenters regarding the then-proposed interpretive rule were addressed by EPA in the context of finalizing that rule. 81 FR 30183.16

    16EPA's Response to Public Comments on Revised Interpretation of Clean Water Act Tribal Provision at https://www.regulations.gov/document?D=EPA-HQ-OW-2014-0461-0110.

    XI. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

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

    The Office of Management and Budget (OMB) determined that this action is not a significant regulatory action and therefore it was not submitted to the OMB for review.

    B. Paperwork Reduction Act (PRA)

    EPA has submitted the information collection requirements in this legislative rule to OMB for approval under the PRA. The Information Collection Request (ICR) document that EPA prepared has been assigned EPA ICR number 2553.02. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. This ICR supplements the current information collection requirements in EPA ICR number 1560.11 (National Water Quality Inventory Reports (Renewal)) and addresses the tribes' CWA Section 303(d) Impaired Water Listing and TMDL TAS application and 303(d) Program implementation burden, as well as EPA's burden for reviewing the tribes' applications and 303(d) Program submittals. ICR 1560.11 is a renewal of ICR 1560.10. OMB approved ICR number 1560.11 in March 2016.

    This legislative rule establishes a process for tribes to obtain TAS for the 303(d) Program. As described in the ICR, EPA estimates the total burden on tribes to apply for TAS for the 303(d) Program would be 3,240 staff hours annually for an estimated 12 tribes that would apply for and receive TAS approval per year.

    Tribes that receive TAS approval and have applicable WQS will then need to implement the requirements of section 303(d) to list impaired waters, set TMDL priorities, and develop TMDLs. EPA estimates that such 303(d) Program implementation burden would entail 86,664 staff hours annually for the estimated 12 tribes. ICR 1560.11 already includes the estimated burden for states to implement section 303(d), but does not include estimates for tribes. Therefore, the ICR for this rule includes the tribal section 303(d) implementation burden as well as the TAS application burden described in the previous paragraph.

    As discussed in section V of this notice, EPA's regulations require that a tribe seeking to administer a CWA regulatory program must submit information to EPA demonstrating that the tribe meets the statutory criteria described in section V. EPA requires this information in order to determine that the tribe is eligible to administer the 303(d) Program. The CWA would require an authorized tribe to submit additional information to EPA—in this case, the lists of impaired waters and the TMDLs—once the tribe begins implementing the 303(d) Program.

    Respondents/affected entities: Any federally recognized tribe with a reservation can potentially apply to administer a regulatory program under the CWA. Tribes with TAS for the 303(d) Program would then implement the Program, as described in section IV.

    Respondent's obligation to respond: The information discussed in this rule is required from a tribe only if the tribe seeks TAS and is found eligible to administer a CWA Section 303(d) Impaired Water Listing and TMDL Program. See EPA's regulations cited in section V of this notice.

    Estimated number of respondents: Over 300 tribes with reservations could potentially apply for 303(d) TAS. Although there are 567 federally recognized Indian tribes in the United States as of this rule, the CWA allows only those tribes with reservations to apply for authority to administer programs. EPA estimates that an average of 12 tribes per year would apply under this rule, and an average of 12 tribes per year would implement the 303(d) Program over the three year period of the ICR.

    Frequency of response: Application by a tribe to be eligible to administer the 303(d) Program is a one-time collection of information. Authorized tribes implementing the 303(d) Program would submit impaired water lists to EPA every two years, and submit TMDLs to EPA from time to time as described in section IV of this notice.

    Total estimated burden: 89,904 tribal staff hours per year for TAS for 303(d) Program application activities and 303(d) Program implementation activities. Burden is defined at 5 CFR 1320.3(b).

    This estimate may overstate actual burden because EPA used a conservatively high estimate of the annual rate of tribal applications. This conservatively high estimate was used to ensure that the ICR does not underestimate tribal burden, given that EPA used a simplifying steady-state assumption in estimating annualized tribal application costs. Also, EPA used conservatively high estimates of 303(d) Program implementation burden (i.e., 303(d) listing and number of TMDLs that tribes would submit to EPA annually), as further described in the ICR number 2553.02.

    Total estimated cost: $4,185,264, including staff salaries and the cost of support contractors for an annual average of 12 tribes to apply for TAS and implement the 303(d) Program. This action does not include capital or operation and maintenance costs.

    An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This action affects only Indian tribes that seek TAS for the CWA Section 303(d) Impaired Water Listing and TMDL Program.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

    E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

    This action only applies to tribal governments that seek eligibility to administer the 303(d) Program. Although it could be of interest to some state governments, it does not apply directly to any state government or to any other entity.

    In the spirit of Executive Order 13132, and consistent with EPA policy to promote communications between EPA and state and local governments, EPA consulted with state associations and representatives of state governments to obtain meaningful and timely input for consideration in this rule. By letter dated September 19, 2014, EPA invited 10 national and regional state associations to an October 1, 2014, informational meeting at EPA in Washington, DC.17 As a result of this meeting and other outreach, EPA participated in two subsequent meetings with a subset of these associations and their members as well as certain individual states during October 2014. Records of these meetings and copies of written comments and questions submitted by states and state associations are included in the docket for this rule.

    17 The ten associations were: The National Governors Association, the National Conference of State Legislatures, the Council of State Governments, the Western Governors' Association, the Southern Governors' Association, the Midwestern Governors Association, the Coalition of Northeastern Governors, the Environmental Council of the States, the Association of Clean Water Administrators, and the Western States Water Council.

    Some participants expressed interest in: (1) The nature of comments received from tribes during the pre-proposal tribal consultation and coordination (April 8-June 6, 2014); (2) where they could find the list of tribes having TAS for the WQS Program; (3) whether the TAS process for CWA Section 303(d) Impaired Water Listing and TMDL Program would be consistent with other TAS processes; and (4) whether there is a process in place to consult with states where a tribe applies for TAS for 303(d). Some states also had questions about issues unique to their situations. EPA considered this input in developing the rule, particularly in developing sections V to IX. EPA also consulted with state associations and state representatives during the public comment period, including a webinar for state representatives and informational communications with individual state representatives. In comments on the proposed rule, most states generally were neutral regarding the proposed rule overall. Some states cited special circumstances regarding applicability of the rule in their states, or provided comments objecting to EPA's proposed (now final) interpretive rule regarding tribal jurisdiction under the CWA. See Revised Interpretation of Clean Water Act Tribal Provision, 81 FR 30183 (May 16, 2016).

    F. Executive Order 13175: Tribal Consultation and Coordination

    This action has tribal implications because it will directly affect tribes interested in administering the CWA Section 303(d) Impaired Water Listing and TMDL Program. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. Thus, this action is not subject to consultation under Executive Order 13175. Tribes are not required to administer a 303(d) Program. Where a tribe chooses to do so, the rule provides a regulatory process for the tribe to apply and for EPA to act on the tribe's application.

    EPA consulted and coordinated with tribal officials under the EPA Policy on Consultation and Coordination with Indian Tribes early in the process of developing this regulation to permit them to have meaningful and timely input into its development. A summary of that consultation and coordination follows.

    EPA initiated a tribal consultation and coordination process for this action by sending a “Notification of Consultation and Coordination” letter on March 28, 2014, to all 566 federally-recognized tribes as of that date.18 The letter invited tribal leaders and designated consultation representative(s) to participate in the tribal consultation and coordination process. EPA held a webinar concerning this matter for tribal representatives on April 29, 2014. A total of 46 tribal representatives participated. Additionally, tribes and tribal organizations sent five pre-proposal comment letters to EPA. Records of this webinar and copies of written comments and questions submitted by tribes and intertribal consortia are included in the docket for this rule. Tribal comments generally supported EPA's plan to propose a TAS rule for the 303(d) Program. Some comments expressed the need for additional financial and technical support as tribes obtain TAS for the CWA Section 303(d) Impaired Water Listing and TMDL Program.

    18 There are now 567 federally recognized tribes. 81 FR 26826 (May 4, 2016).

    During the 60-day public comment period on the proposed rule in 2016, EPA provided informational webinars for tribes and conducted further consultation and coordination with tribes. EPA initiated a tribal consultation and coordination process on the proposed rule by sending a “Notification and Coordination” letter on January 19, 2016, to the 566 federally-recognized tribes as of that date. Following the public comment period, EPA also participated in informational meetings with tribes. As noted in Section I, EPA received comments from nine tribes and tribal associations on the proposed rule. Tribal comments generally supported the proposed rule. Several comments re-iterated the need for additional funding and technical support as tribes begin to implement the 303(d) Program. EPA considered the tribal comments in developing this final rule, and intends to remain sensitive to tribal resource issues in its budgeting and planning process. However, EPA cannot assure or assume that additional funding will be available for a tribe developing or implementing the 303(d) Program. A tribe choosing to administer such programs will need to carefully weigh its priorities and any available EPA assistance as described in section IX above.

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

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

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

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

    I. National Technology Transfer and Advancement Act

    This rulemaking does not involve technical standards.

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

    The rule does not have potential to cause disproportionately high and adverse human health or environmental effects on minority, low-income, or indigenous populations. This rule would have no direct impacts on human health or the environment. The rule affects processes and information collection only. The rule puts in place the procedures interested tribes would follow to seek TAS for the CWA Section 303(d) Impaired Water Listing and TMDL Program. The action is likely to result in the collection of information or data that could be used to assess potential impacts on the health or environmental conditions in Indian country (see sections III and IV). As described in sections III and IV above, under CWA section 303(d), authorized tribes with applicable WQS would be required to develop lists of impaired waters, submit these lists to EPA, and develop TMDLs for pollutants causing impairments in the waters on the 303(d) lists. TAS for 303(d) would provide authorized tribes the opportunity to participate directly in protecting their reservation waters through the Section 303(d) Impaired Water Listing and TMDL Program, as Congress intended through CWA section 518(e). EPA also expects this rule will advance the goals of the CWA as interested tribes apply for TAS to administer the CWA Section 303(d) Impaired Water Listing and TMDL Program for reservation water bodies.

    The action is likely to increase the availability of water quality information to indigenous populations as interested tribes obtain TAS for the CWA Section 303(d) Impaired Water Listing and TMDL Program and begin implementing the Program. In short, tribes with TAS assume the primary role under the CWA in deciding (1) what waters on their reservations are impaired and in need of restoration, (2) the priority ranking for TMDL development, and (3) what the TMDLs and pollutant source allocations for those waters should look like.

    EPA provided meaningful participation opportunities for tribes in the development of this rule, as described in “F. Executive Order 13175: Tribal Consultation and Coordination,” above.

    K. Congressional Review Act

    This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 130

    Environmental protection, Grant programs-environmental protection, Indian lands, Intergovernmental relations, Reporting and recordkeeping requirements, Water pollution control, Water supply.

    Dated: September 16, 2016. Gina McCarthy, Administrator.

    For the reasons stated in the preamble, the U.S. Environmental Protection Agency amends 40 CFR part 130 as follows:

    PART 130—WATER QUALITY PLANNING AND MANAGEMENT 1. The authority citation for part 130 continues to read as follows: Authority:

    33 U.S.C. 1251 et seq.

    2. Section 130.16 is added to read as follows:
    § 130.16 Treatment of Indian tribes in a similar manner as states for purposes of the Clean Water Act.

    (a) The Regional Administrator may accept and approve a tribal application for purposes of administering the Clean Water Act (CWA) Section 303(d) Impaired Water Listing and Total Maximum Daily Load (TMDL) Program if the tribe meets the following criteria:

    (1) The Indian tribe is recognized by the Secretary of the Interior and meets the definitions in § 131.3(k) and (l) of this chapter;

    (2) The Indian tribe has a governing body carrying out substantial governmental duties and powers;

    (3) The CWA section 303(d) Impaired Water Listing and TMDL Program to be administered by the Indian tribe pertains to the management and protection of water resources that are within the borders of the Indian reservation and held by the Indian tribe, within the borders of the Indian reservation and held by the United States in trust for Indians, within the borders of the Indian reservation and held by a member of the Indian tribe if such property interest is subject to a trust restriction on alienation, or otherwise within the borders of the Indian reservation; and

    (4) The Indian tribe is reasonably expected to be capable, in the Regional Administrator's judgment, of carrying out the functions of an effective CWA Section 303(d) Impaired Water Listing and TMDL Program in a manner consistent with the terms and purposes of the Act and applicable regulations.

    (b) Requests by Indian tribes for administration of the CWA Section 303(d) Impaired Water Listing and TMDL Program should be submitted to the appropriate EPA Regional Administrator. The application shall include the following information, provided that where the tribe has previously qualified for eligibility or “treatment as a state” (TAS) under another EPA-administered program, the tribe need only provide the required information that has not been submitted in a previous application:

    (1) A statement that the tribe is recognized by the Secretary of the Interior.

    (2) A descriptive statement demonstrating that the tribal governing body is currently carrying out substantial governmental duties and powers over a defined area. The statement should:

    (i) Describe the form of the tribal government;

    (ii) Describe the types of governmental functions currently performed by the tribal governing body such as, but not limited to, the exercise of police powers affecting (or relating to) the health, safety, and welfare of the affected population, taxation, and the exercise of the power of eminent domain; and

    (iii) Identify the source of the tribal government's authority to carry out the governmental functions currently being performed.

    (3) A descriptive statement of the tribe's authority to regulate water quality. The statement should include:

    (i) A map or legal description of the area over which the tribe asserts authority to regulate surface water quality;

    (ii) A statement by the tribe's legal counsel (or equivalent official) that describes the basis for the tribe's assertion of authority and may include a copy of documents such as tribal constitutions, by-laws, charters, executive orders, codes, ordinances, and/or resolutions that support the tribe's assertion of authority; and

    (iii) An identification of the surface waters that the tribe proposes to assess for potential impaired water listing and TMDL development.

    (4) A narrative statement describing the capability of the Indian tribe to administer an effective CWA Section 303(d) Impaired Water Listing and TMDL Program. The narrative statement should include:

    (i) A description of the Indian tribe's previous management experience that may include the administration of programs and services authorized by the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450, et seq.), the Indian Mineral Development Act (25 U.S.C. 2101, et seq.), or the Indian Sanitation Facility Construction Activity Act (42 U.S.C. 2004a);

    (ii) A list of existing environmental or public health programs administered by the tribal governing body and copies of related tribal laws, policies, and regulations;

    (iii) A description of the entity (or entities) that exercise the executive, legislative, and judicial functions of the tribal government;

    (iv) A description of the existing, or proposed, agency of the Indian tribe that will assume primary responsibility for establishing, reviewing, implementing and revising impaired water lists and TMDLs; and

    (v) A description of the technical and administrative capabilities of the staff to administer and manage an effective CWA Section 303(d) Impaired Water Listing and TMDL Program or a plan that proposes how the tribe will acquire the needed administrative and technical expertise. The plan must address how the tribe will obtain the funds to acquire the administrative and technical expertise.

    (5) Additional documentation required by the Regional Administrator that, in the judgment of the Regional Administrator, is necessary to support a tribal application.

    (c) Procedure for processing a tribe's application:

    (1) The Regional Administrator shall process an application of a tribe submitted pursuant to § 130.16(b) in a timely manner. The Regional Administrator shall promptly notify the tribe of receipt of the application.

    (2) Except as provided below in paragraph (c)(4) of this section, within 30 days after receipt of the tribe's application, the Regional Administrator shall provide appropriate notice. Notice shall:

    (i) Include information on the substance and basis of the tribe's assertion of authority to regulate the quality of reservation waters;

    (ii) Be provided to all appropriate governmental entities; and

    (iii) Provide 30 days for comments to be submitted on the tribal application. Comments shall be limited to the tribe's assertion of authority.

    (3) If a tribe's asserted authority is subject to a competing or conflicting claim, the Regional Administrator, after due consideration, and in consideration of other comments received, shall determine whether the tribe has adequately demonstrated that it meets the requirements of § 130.16(a)(3).

    (4) Where, after the effective date of this rule, EPA has determined that a tribe qualifies for TAS for the CWA Section 303(c) Water Quality Standards Program, CWA Section 402 National Pollutant Discharge Elimination System Program, or CWA Section 404 Dredge and Fill Permit Program, and provided notice and an opportunity to comment on the tribe's assertion of authority to appropriate governmental entities as part of its review of the tribe's prior application, no further notice to governmental entities, as described in paragraph (c)(2) of this section, shall be provided with regard to the same tribe's application for the CWA Section 303(d) Impaired Water Listing and TMDL Program, unless the application presents to the EPA Regional Administrator different jurisdictional issues or significant new factual or legal information relevant to jurisdiction.

    (5) Where the Regional Administrator determines that a tribe meets the requirements of this section, he or she shall promptly provide written notification to the tribe that the tribe is authorized to administer the CWA Section 303(d) Impaired Water Listing and TMDL Program. Such tribe shall be considered a “State” for purposes of CWA section 303(d) and its implementing regulations. With respect to the timing requirement for submittal of an authorized tribe's first list of impaired waters pursuant to § 130.7(d)(1), the tribe's first list is due on the next listing cycle due date that is at least 24 months from the later of either:

    (i) The date EPA approves the tribe's TAS application pursuant to this section; or

    (ii) The date EPA-approved or EPA-promulgated water quality standards become effective for the tribe's reservation waters.

    [FR Doc. 2016-22882 Filed 9-23-16; 8:45 a.m.] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2015-0791; FRL-9951-60] Fluopicolide; Pesticide Tolerances AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation amends tolerances for residues of fluopicolide in or on potato, processed potato waste and vegetable, tuberous and corm, subgroup 1C and establishes a tolerance for residues of fluopicolide in or on potato, granules/flakes. Valent U.S.A. Corporation requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA). This regulation also assigns an expiration date to existing tolerances for potato, processed potato waste at 1.0 ppm and vegetable, tuberous and corm, subgroup 1C at 0.3 ppm. Lastly, this regulation establishes a time-limited tolerance on hop, dried cones. The time-limited tolerance is in response to EPA's granting of an emergency exemption under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The time-limited tolerance will expire and revoked on December 31, 2019.

    DATES:

    This regulation is effective September 26, 2016. Objections and requests for hearings must be received on or before November 25, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2015-0791, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. General Information A. Does this action apply to me?

    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).

    B. How can I get electronic access to other related information?

    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. To access the OCSPP test guidelines referenced in this document electronically, please go to http://www.epa.gov/ocspp and select “Test Methods and Guidelines.”

    C. How can I file an objection or hearing request?

    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-2015-0791 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 25, 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-2015-0791, 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. II. Summary of Agency's Action A. Petitioned-For Tolerances

    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 5F8414) by Valent U.S.A. Corporation, 1600 Riviera Avenue, Suite 200, Walnut Creek, CA 94596. The petition requested that 40 CFR 180.627 be amended by establishing tolerances for residues of the fungicide fluopicolide, 2,6-dichloro-N-[3-chloro-5-(trifluoromethyl)-2-pyridylmethyl]-benzamide, in or on potato, chips at 0.1 parts per million (ppm) and potato, granules/flakes at 0.15 ppm. That document referenced a summary of the petition prepared by Valent U.S.A. Corporation, the registrant, which is available in the docket, http://www.regulations.gov. A comment was received on the notice of filing. EPA's response to this comment is discussed in Unit IV.C.

    In the Federal Register of May 19, 2016 (81 FR 31581) (FRL-9946-02) 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 5F8414) by Valent U.S.A. Corporation, 1600 Riviera Avenue, Suite 200, Walnut Creek, CA 94596. The petition requested that 40 CFR 180.627 be amended by amending tolerances for residues of the fungicide fluopicolide, 2,6-dichloro-N-[3-chloro-5-(trifluoromethyl)-2-pyridylmethyl]-benzamide, in or on potato, processed potato waste at 0.25 ppm and vegetable, tuberous and corm, subgroup 1C at 0.10 ppm. That document referenced a summary of the petition prepared by Valent U.S.A. Corporation, the registrant, which is available in the docket, http://www.regulations.gov.

    Based upon review of the data supporting the petition, EPA is establishing tolerance levels for potato, processed potato waste and vegetable, tuberous and corm, subgroup 1C that differ from the petition requests and is not establishing a tolerance for residues on potato, chips. The reasons for these changes are explained in Unit IV.D.

    B. Tolerance for Use of Pesticide Under Emergency Exemption

    In response to a crisis exemption request filed under section 18 of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) on behalf of the Michigan Department of Agriculture and Rural Development for the emergency use of fluopicolide to control downy mildew on hops grown in Michigan, EPA is establishing, pursuant to FFDCA section 408(l)(6), a time-limited tolerance for the use of fluopicolide on hop, dried cones at 30 ppm with an expiration date of December 31, 2019.

    As part of its evaluation of the emergency exemption application, EPA assessed the potential risks presented by residues of fluopicolide on hops. In doing so, EPA considered the safety standard in section 408(b)(2) of FFDCA, and the Agency decided that the necessary tolerance under section 408(l)(6) of FFDCA would be consistent with the safety standard and with FIFRA section 18. Consistent with the need to move quickly on the emergency exemption in order to address an urgent non-routine situation and to ensure that the resulting food is safe and lawful, EPA is issuing this tolerance without notice and opportunity for public comment as provided in section 408(l)(6) of FFDCA. Although this time-limited tolerance expires and is revoked on December 31, 2019, under section 408(l)(5) of FFDCA, residues of the pesticide not in excess of the amounts specified in the tolerance remaining in or on hops after that date will not be unlawful, provided the pesticide was applied in a manner that was lawful under FIFRA, and the residues do not exceed a level that was authorized by the time-limited tolerance at the time of that application. EPA will take action to revoke this time-limited tolerance earlier if any experience with, scientific data on, or other relevant information on this pesticide indicate that the residues are not safe.

    Because this time-limited tolerance is being approved under emergency conditions, EPA has not made any decisions whether fluopicolide meets FIFRA's registration requirements for use in or on hops or whether a permanent tolerance for this use would be appropriate. Under these circumstances, EPA does not believe that this time-limited tolerance serves as a basis for registration of fluopicolide by a State for Special Local Needs under FIFRA section 24(c). Nor does this tolerance serve as the basis for persons in any State other than Michigan to use this pesticide on hops under FIFRA sction 18 absent the issuance of an emergency exemption applicable within that State. For additional information regarding the emergency exemption for fluopicolide, contact the Agency's Registration Division at the address provided under FOR FURTHER INFORMATION CONTACT.

    III. Aggregate Risk Assessment and Determination of Safety

    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 fluopicolide including exposure resulting from the tolerances established by this action.

    Fluopicolide shares a metabolite, 2,6-dichlorobenzamide (BAM), with another active ingredient, dichlobenil. Residues of BAM are considered to be of regulatory concern, and separate toxicity data and endpoints for risk assessment have been identified for BAM. Therefore, EPA has considered the aggregate, or combined risks, from food, water, and non-occupational exposure resulting from fluopicolide alone and BAM from all sources for this action. The BAM risk assessment considers residues resulting from both fluopicolide and dichlobenil uses. However, BAM residues generated from fluopicolide uses are expected to be significantly lower than BAM residues from dichlobenil uses.

    A. Fluopicolide

    In the Federal Register of August 6, 2014 (79 FR 45688) (FRL-9914-37), EPA amended tolerances to raise the residue levels of fluopicolide in or on potato, processed potato waste to 1.0 ppm and vegetable, tuberous and corm, subgroup 1C to 0.3 ppm. In March of 2016, the EPA updated the dietary assessment for fluopicolide to account for the use of fluopicolide on hops under an emergency exemption. The March 2016 assessment considered the higher tolerance levels for potato, processed potato waste (1.0 ppm) and vegetable, tuberous and corm, subgroup 1C (0.3 ppm). Since this current action involves lowering the tolerances for potato, processed potato waste to 0.2 ppm and vegetable, tuberous and corm, subgroup 1C to 0.09 ppm, the EPA is relying upon the risk assessments and the findings made for fluopicolide in the August 6, 2014 Federal Register document, as well as an updated dietary risk assessment conducted for hops to support the lowering of the tolerances for potato, processed potato waste and vegetable, tuberous and corm, subgroup 1C.

    The toxicity profile and the points of departure for evaluating human health for fluopicolide have not changed since the August 6, 2014 rule. EPA conducted a dietary risk assessment to support the Section 18 registration for use of fluopicolide on hops grown in Michigan in March 2016. The March 2016 assessment assumed the same exposure assumptions for assessing food exposure as discussed in Unit III.C. of the 2014 rule, where the analysis assumed 100 percent crop treated (PCT) and tolerance-level residues for all proposed/registered crops except for field corn/wheat grain (rotational crop tolerances) and tuberous and corm vegetables. For these crops, the residues of concern for risk assessment include metabolites that are not included in the tolerance expression, and the analysis assumed the highest combined residues from the field trials. However, the drinking water estimates used in 2016 are higher than those used in 2014 (24.14 ppb) based on the use of the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS), where residues in ground water are now estimated to be 103 ppb. The March 2016 assessment resulted in slightly higher chronic dietary exposure estimates than the August 2014 dietary risk assessment (an increase from 13% to 14% chronic population-adjusted dose (cPAD)). Since the 2016 dietary risk assessment does not take into account the tolerance reductions for potato, processed potato waste (from 1.0 ppm to 0.2 ppm) and vegetable, tuberous and corm, subgroup 1C (from 0.3 ppm to 0.09 ppm) and estimates a higher drinking water concentration (24.14 ppb to 103 ppb), EPA expects the actual chronic dietary exposure estimates to be lower than 14%. The Agency has not made any new findings concerning cumulative exposure, nor has it identified any residual uncertainties to warrant changes to the Agency's August 6, 2014 FQPA safety factor determination. EPA concludes that reliable data continue to show that the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X based on the same findings found in the August 6, 2014 rule and supporting documents. Therefore, relying upon the findings made in the August 6, 2014, Federal Register document and the 2016 dietary risk assessment, 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 fluopicolide residues.

    For a detailed discussion of the aggregate risk assessments and determination of safety for these tolerances, please refer to the August 6, 2014, Federal Register document and its supporting documents, available at http://www.regulations.gov in docket ID number EPA-HQ-OPP-2014-0225, as well as document titled “Fluopicolide. Section 18 Registration for Application of Fluopicolide to Hops Grown in Michigan. Dietary Risk Assessment.” dated March 24, 2016, in docket ID number EPA-HQ-OPP-2015-0791.

    However, since the August 6, 2014 action relied on a 2008 action for BAM, the EPA has updated the BAM assessment to revisit the percent crop treated (PCT) and account for updated food consumption data. EPA's assessment of exposures and risks associated with BAM follows.

    B. BAM 1. Toxicological Profile

    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 toxicity profile for BAM has not changed since the 2008 assessment EPA conducted for BAM. Specific information on the studies received and the nature of the adverse effects caused by BAM as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found in “2,6-Dichlorobenzamide (BAM). 2,6-Dichlorobenzamide (BAM) as a Metabolite/Degradate of Fluopicolide and Dichlobenil. Human Health Risk Assessment for Proposed Uses of Rhubarb, Dichlobenil on Caneberries (Subgroup 13-07A), and Bushberries (Subgroup 13-07B).” dated June 19, 2008, in docket ID number EPA-HQ-OPP-2007-0604.

    2. Toxicological Points of Departure/Levels of Concern

    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 BAM used for human risk assessment is discussed in Unit III.B. of the final rule published in the Federal Register of April 20, 2011 (76 FR 22045) (FRL-8859-9).

    3. Exposure Assessment

    a. Dietary exposure from food and feed uses. In evaluating dietary exposure to BAM, EPA considered exposure of BAM from petitioned-for tolerances discussed in this document, as well as all existing uses for both fluopicolide and dichlobenil. EPA assessed dietary exposures from BAM 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 from a 1-day or single exposure.

    Such effects were identified for BAM. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). This dietary survey was conducted from 2003 to 2008. EPA conducted a partially refined acute dietary exposure assessment for the metabolite BAM. As to residue levels in food, EPA assumed maximum BAM residue from either the fluopicolide or dichlobenil field trial data. Further, 100 PCT for all commodities was assumed except apples, blueberries, cherries, peaches, pears, and raspberries where EPA relied on PCT estimates based on use of dichlobenil on these commodities; fluopicolide is not registered for use on these commodities. DEEM default processing-factors were used for commodities where empirical processing data were not available.

    ii. Chronic exposure. In conducting the chronic dietary exposure assessment, EPA used food consumption information from the USDA NHANES/WWEIA 2003 to 2008 dietary survey. As to residue levels in food, EPA assumed maximum BAM residue from either fluopicolide or dichlobenil field trials and, further, the chronic assessment used 100 PCT for all commodities except apples. DEEM default processing-factors were used for commodities where empirical processing data were not available.

    iii. Cancer. EPA determines whether quantitative cancer exposure and risk assessments are appropriate for a food-use pesticide based on the weight of the evidence from cancer studies and other relevant data. Cancer risk is quantified using a linear or nonlinear approach. If sufficient information on the carcinogenic mode of action is available, a threshold or nonlinear approach is used and a cancer RfD is calculated based on an earlier noncancer key event. If carcinogenic mode of action data are not available, or if the mode of action data determines a mutagenic mode of action, a default linear cancer slope-factor approach is utilized. EPA has concluded that a nonlinear RfD approach is appropriate for assessing cancer risk to BAM.

    The carcinogenic potential of BAM has been evaluated in only one species, the rat. That study showed an increased incidence of hepatocellular adenomas in high-dose females that was marginally statistically significant. To be conservative, EPA has assumed that BAM's potential for carcinogenicity is similar to the parent having the greatest carcinogenic potential. Fluopicolide has been classified as not likely to be carcinogenic to humans; EPA classified dichlobenil as a Group C, possible human carcinogen, but determined that the chronic dietary risk assessment based on the cPAD would be protective of any potential cancer effects. EPA has assumed that BAM's carcinogenic potential is similar to that of dichlobenil, the parent compound having the greatest carcinogenicity potential. As with dichlobenil, the chronic dietary risk assessment based on the cPAD is expected to protect for any potential cancer effects. Cancer risk was assessed using the same exposure estimates as discussed in Unit III.B.3.a.ii.

    For additional information, refer to the summary of the toxicological endpoints for BAM used for human risk assessment is discussed in Unit III.B. of the final rule published in the Federal Register of April 20, 2011 (76 FR 22045) (FRL-8859-9).

    iv. Anticipated residue and percent crop treated (PCT) information. For the BAM dietary assessment, EPA used available anticipated residue levels and PCT information on apples, blueberries, cherries, peaches, pears, and raspberries where EPA relied on PCT estimates based on use of dichlobenil; fluopicolide is not registered for use on these commodities. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

    Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:

    • Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.

    • Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.

    • Condition c: Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area.

    In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

    In the acute dietary assessment for BAM, the Agency estimated the PCT from the existing dichlobenil uses as follows: Apple, 2.5%; blueberry, 2.5%; raspberry, 20%; cherry, 2.5%; peach, 2.5%; pear, 5%. In the chronic dietary assessment for BAM, the Agency estimated the PCT from the existing dichlobenil uses as follows: Apple, 1%.

    In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6 to 7 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than one. In those cases, 1% is used as the average PCT and 2.5% is used as the maximum PCT. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%.

    The Agency believes that the three conditions discussed in Unit III.B.3.a.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which fluopicolide or dichlobenil may be applied in a particular area.

    b. Dietary exposure from drinking water. The Agency used screening-level water exposure models in the dietary exposure analysis and risk assessment for BAM in drinking water. The Agency used estimates of BAM resulting from the application of dichlobenil, as they were higher than those resulting from the application of fluopicolide. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of BAM. 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) and Screening Concentration in Ground Water (SCI-GROW) models, the estimated drinking water concentrations (EDWCs) of BAM resulting from application of dichlobenil for acute exposures are estimated to be 25.5 parts per billion (ppb) for surface water and 67.4 ppb for ground water. The EDWCs of BAM resulting from application of dichlobenil for chronic exposures for non-cancer assessments are estimated to be 10.5 ppb for surface water and 67.4 ppb for ground water.

    Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute and chronic dietary risk assessment, the water concentration of value 67.4 ppb was used to assess the contribution to drinking water.

    c. 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).

    Fluopicolide is currently registered for the following uses that could result in residential exposures: Residential turf grass, recreational sites, and ornamental plants and trees. EPA assessed residential exposure to BAM from fluopicolide uses using the following assumptions: Residential handlers may receive short-term dermal and inhalation exposure to BAM when mixing, loading, and applying the fluopicolide formulations. Residential post-application exposure via the dermal route is likely for adults and children entering treated lawns or treated gardens and during mowing and golfing activities. Children may experience exposure via incidental non-dietary ingestion (i.e., hand-to-mouth, object-to-mouth, and soil ingestion) during post-application activities on treated turf.

    Residential handler exposure to BAM resulting from the application of dichlobenil is not expected. While dichlobenil is currently registered for residential uses on ornamental plants, they are approved for professional applicator use only. Post-application exposure of adults and children to dichlobenil and BAM exposure from the use of dichlobenil products on ornamental plants is expected to be negligible and, therefore, was not assessed.

    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.

    d. 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.”

    Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to fluopicolide and any other substances. Fluopicolide shares a common metabolite, BAM, with dichlobenil. Quantification of risks for residues of BAM resulting from fluopicolide and dichlobenil was completed as part of this assessment; aggregate risks from BAM are not of concern. For the purposes of this tolerance action, EPA has not assumed that fluopicolide has 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

    4. Safety Factor for Infants and Children

    a. 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.

    b. Prenatal and postnatal sensitivity. For BAM, there is no evidence of quantitative susceptibility following in utero and/or postnatal exposure in the rabbit developmental toxicity study or in the 3-generation rat reproduction study. Qualitative susceptibility was not observed in the 3-generation reproduction study. Qualitative susceptibility was observed in the rabbit developmental toxicity study. Fetal effects (skeletal and visceral anomalies) and late-term abortions were observed. There is low concern for this qualitative susceptibility, because the fetal effects and late-term abortions have been well characterized and occurred at dose levels where significant maternal toxicity (severe body-weight gain decrements and decreased food consumption) was observed. Protection of the maternal effects also protects for any effects that may occur during development. There are not residual uncertainties concerning prenatal and postnatal toxicity for BAM.

    c. Conclusion. EPA has retained the 10X FQPA SF for BAM for those exposure scenarios that do not rely on dichlobenil toxicity data. These scenarios are acute dietary for the general population (including infants and children) and females 13-49 years of age, chronic dietary, and incidental oral non-dietary. Although EPA has developmental, reproduction, and subchronic and chronic toxicity studies for the metabolite BAM, and a structure activity analysis indicates EPA has identified its principal toxicological effects and level of toxicity, EPA is retaining the FQPA 10X SF due to remaining questions regarding the systemic neurotoxic potential of BAM (olfactory neurotoxicity) via the oral route of exposure and the use of a LOAEL in assessing acute dietary risk for the general population. For the dermal and inhalation routes of exposures, for which the Agency is relying on dichlobenil toxicity data, EPA has reduced the FQPA SF for BAM to 1X, based on a comparison of toxicity via the intraperitoneal route of exposure showing that higher doses of BAM are needed to induce levels of olfactory toxicity that are similar to those caused by dichlobenil. Olfactory toxicity, the most sensitive endpoint, was the endpoint chosen for these exposure scenarios. Other factors EPA considered in the FQPA SF decisions for BAM include the following:

    i. To compensate for deficiencies in the toxicology database for BAM, EPA performed a comparative analysis of the toxicity of BAM and the parent compounds, dichlobenil and fluopicolide, using the available animal data and DEREK analysis (Deductive Estimation of Risk from Existing Knowledge). DEREK is a toxicology application that uses structure-activity relationships to predict a broad range of toxicological properties based on a comprehensive analysis of a compound's molecular structure. Based on the available animal data and DEREK analyses, BAM does not appear to cause different organ-specific toxicities compared to fluopicolide and dichlobenil. The kidney and liver toxicities are common to all three compounds. With respect to relative toxicity, conclusions from the evaluation of the animal studies appear to confirm that both fluopicolide and dichlobenil appear to be more or equally toxic compared to BAM. A full discussion of EPA's comparative toxicity analysis of BAM, dichlobenil and fluopicolide can be found at http://www.regulations.gov in the document Comparative Toxicity Using Derek Analysis for Dichlobenil, Fluopicolide and BAM in docket ID number EPA-HQ-OPP-2007-0604. Based on the results of the available animal data and the DEREK analysis, EPA concludes that the safety factors discussed in the previous paragraph are adequate.

    ii. For BAM, there is no evidence of quantitative susceptibility following in utero and/or postnatal exposure in the rabbit developmental toxicity study or in the 3-generation rat reproduction study. Qualitative susceptibility was not observed in the 3-generation reproduction study however, qualitative susceptibility was observed in the rabbit developmental toxicity study. Yet the concern for this qualitative susceptibility is low because the fetal effects and late-term abortions have been well characterized and occurred at dose levels where significant maternal toxicity (severe body-weight gain decrements and decreased food consumption) was observed. Protection of the maternal effects also protects for any effects that may occur during development.

    iii. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were refined using reliable PCT information and anticipated residue values calculated from residue field trial results. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to BAM in drinking water. EPA used similarly conservative assumptions to assess postapplication exposure of children as well as incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by BAM.

    5. Aggregate Risks and Determination of Safety

    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.

    a. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to BAM will occupy 26% of the aPAD for females 13 to 49 years old, the population group receiving the greatest exposure.

    b. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to BAM from food and water will utilize 95% of the cPAD for all Infants (<1 year old), the population group receiving the greatest exposure. Based on the explanation in Unit III.B.3.c., regarding residential use patterns, chronic residential exposure to residues of BAM is not expected.

    c. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered a background exposure level). Fluopicolide, is currently registered for uses that could result in short-term residential exposure to BAM, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to BAM associated with the application of fluopicolide. As noted in Unit III.B.3.c above, EPA does not expect there to be residential exposures to BAM from use of dichlobenil. Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 3200 for All Infants (<1 year old) and 5,400 for children 1 to 2 years old. Because EPA's level of concern for BAM is a MOE of 1,000 or below, these MOEs are not of concern.

    d. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered a background exposure level). An intermediate-term adverse effect was identified; however, fluopicolide is not registered for any use patterns that would result in intermediate-term residential exposure. Further, fluopicolide and dichlobenil are not registered for any use patterns that would result in intermediate-term residential exposure to BAM. 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 fluopicolide and its metabolite, BAM.

    e. Aggregate cancer risk for U.S. population. The Agency considers the chronic aggregate risk assessment, making use of the cPAD, to be protective of any aggregate cancer risk. See Unit III.B.5.b, Chronic risk, above.

    f. 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 residues of fluopicolide and its metabolite, BAM.

    IV. Other Considerations A. Analytical Enforcement Methodology

    Adequate enforcement methodology (liquid chromatography/tandem mass spectrometry (LC/MS/MS)) is available to enforce the tolerance expression.

    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]

    B. International Residue Limits

    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 an MRL for fluopicolide on the subject commodities.

    C. Response to Comments

    EPA received one comment to the Notice of Filing that stated, in part, that the citizenry of this country do not want to eat any food items that have been polluted by these toxic chemicals and to deny this exemption. 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. 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.

    D. Revisions to Petitioned-For Tolerances

    EPA revised the tolerance levels based on analysis of the residue field trial data using the Organization for Economic Cooperation and Development (OECD) tolerance calculation procedures. Based on evaluation of the residue data and use of the OECD calculation procedures, the Agency modified the tolerance for the vegetable, tuberous and corm, subgroup 1C from the requested level of 0.10 ppm to 0.09 ppm. The Agency also modified the tolerance for potato, processed potato waste from the requested tolerance level of 0.25 ppm to 0.2 ppm (0.075 ppm maximum residue × 2.4 processing factor for wet peel). The EPA did not establish the requested tolerance for potato, chips because the tolerance for vegetable, tuberous and corm, subgroup 1C (0.09 ppm) will cover residues in or on potato chips (0.068 ppm estimated residue).

    E. International Trade Considerations

    In this rulemaking, EPA is reducing the tolerances for vegetable, tuberous and corm, subgroup 1C from 0.3 ppm to 0.09 ppm and potato, processed potato waste from 1.0 ppm to 0.2 ppm. The petitioner requested these reductions in order to harmonize tolerances with field trial data after the tolerances were increased in 2014 to support an early season soil application to potato, which has since then been restricted. The reduction is appropriate based on available data and residue levels resulting from registered use patterns.

    In accordance with the World Trade Organization's (WTO) Sanitary and Phytosanitary Measures Agreement, EPA notified the WTO of the request to revise these tolerances on July 19, 2016 as WTO notification G/SPS/N/USA/2861. In this action, EPA is allowing the existing higher tolerances to remain in effect for 6 months following the publication of this rule in order to allow a reasonable interval for producers in the exporting countries to adapt to the requirements of these modified tolerances. On March 27, 2017, those existing higher tolerances will expire, and the new reduced tolerances for vegetable, tuberous and corm, subgroup 1C and potato, processed potato waste will remain to cover residues of fluopicolide on those commodities. Before that date, residues of fluopicolide on those commodities would be permitted up to the higher tolerance levels; after that date, residues of fluopicolide on vegetable, tuberous and corm, subgroup 1C and potato, processed potato waste will need to comply with the new lower tolerance levels. This reduction in tolerance is not discriminatory; the same food safety standard contained in the FFDCA applies equally to domestically produced and imported foods.

    V. Conclusion

    Therefore, tolerances are established for residues of fluopicolide, 2,6-dichloro-N-[3-chloro-5-(trifluoromethyl)-2-pyridylmethyl]-benzamide, in or on vegetable, tuberous and corm, subgroup 1C at 0.09 ppm, potato, processed waste at 0.2 ppm, and potato, granules/flakes at 0.15 ppm. The Agency is adding an expiration date of March 27, 2017 to the existing tolerances for vegetable, tuberous and corm, subgroup 1C at 0.3 ppm and potato, processed potato waste at 1.0 ppm. Residues of fluopicolide will be covered by these higher tolerances until the expiration date, after which time, they will need to comply with the lower tolerances being established today. Lastly, this regulation establishes a time-limited tolerance for residues of fluopicolide in or on hop, dried cone at 30 ppm.

    VI. Statutory and Executive Order Reviews

    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).

    VII. Congressional Review Act

    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).

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: September 13, 2016. Daniel J. Rosenblatt, Acting Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. In § 180.627: a. In the table in paragraph (a), add alphabetically entries for “Potato, granules/flakes” and “Potato, processed potato waste,” revise the existing entry for “Potato, processed potato waste,” and add an entry for “Vegetable, tuberous and corm, subgroup 1C”; and b. Revise paragraph (b).

    The additions and revisions read as follows:

    § 180.627 Fluopicolide; tolerances for residues.

    (a) * * *

    Commodity Parts per
  • million
  • *    *    *    *    * Potato, granules/flakes 0.15 Potato, processed potato waste 0.2 Potato, processed potato waste.1 1.0 *    *    *    *    * Vegetable, tuberous and corm, subgroup 1C 0.09 Vegetable, tuberous and corm, subgroup 1C 1 0.3 1 This tolerance expires on March 27, 2017.

    (b) Section 18 emergency exemptions. Time-limited tolerances specified in the following table are established for residues of the fluopicolide, including its metabolites and degradates, in or on the specified agricultural commodities, resulting from use of the pesticide pursuant to FIFRA section 18 emergency exemptions. Compliance with the tolerance levels specified below is to be determined by measuring only fluopicolide [2,6-dichloro-N-[[3-chloro-5-(trifluoromethyl)-2-pyridinyl]methyl]benzamide] in or on the commodity. The tolerances expire on the date specified in the table.

    Commodity Parts per
  • million
  • Expiration date
    Hop, dried cones 30 December 31, 2019.
    [FR Doc. 2016-23184 Filed 9-23-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 711 [EPA-HQ-OPPT-2009-0187; FRL-9952-64] RIN 2070-AJ43 Chemical Data Reporting; 2016 Submission Period Extension AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    EPA is amending the Toxic Substances Control Act (TSCA) Chemical Data Reporting (CDR) regulations by extending the submission deadline for 2016 reports from September 30, 2016 to October 31, 2016. This is a one-time extension for the 2016 submission period only. The CDR regulations require manufacturers (including importers) of certain chemical substances included on the TSCA Chemical Substance Inventory (TSCA Inventory) to report current data on the manufacturing, processing, and use of the chemical substances.

    DATES:

    This final rule is effective September 26, 2016.

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2009-0187, is available at http://www.regulations.gov or at the Office of Pollution Prevention and Toxics Docket (OPPT Docket), Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPPT Docket is (202) 566-0280. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    For technical information contact: Susan Sharkey, Chemical Control Division (7405M), Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (202) 564-8789; email address: [email protected]

    For general information contact: The TSCA-Hotline, ABVI-Goodwill, 422 South Clinton Ave., Rochester, NY 14620; telephone number: (202) 554-1404; email address: [email protected]

    SUPPLEMENTARY INFORMATION: I. Does this action apply to me?

    You may be potentially affected by this action if you manufacture (including import and manufacture as a byproduct) chemical substances listed on the TSCA Inventory. 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 but are not limited to:

    • Chemical manufacturers (including importers) (NAICS codes 325 and 324110, e.g., chemical manufacturing and processing and petroleum refineries).

    • Chemical users and processors who may manufacture a byproduct chemical substance (NAICS codes 22, 322, 331, and 3344, e.g., utilities, paper manufacturing, primary metal manufacturing, and semiconductor and other electronic component manufacturing).

    II. Background A. What action is the Agency taking?

    The 2016 CDR submission period is from June 1 to September 30, 2016 (40 CFR 711.20). EPA is issuing this amendment to extend the deadline for 2016 CDR submission reports until October 31, 2016. This is a one-time extension: Subsequent submission periods (recurring every four years, next in 2020) are not being amended.

    The Agency is taking this action in response to concerns raised by the regulated community about their ability to submit the required information within the prescribed period. The written request to extend the CDR submission period is included in the docket (see ADDRESSES). The compelling concerns raised by industry include delays in reporting as a result of issues associated with several aspects of electronic reporting. EPA believes it is appropriate to extend the reporting period to allow the regulated community additional time to submit their reports. With respect to the timing of this action, the need for the Agency to extend the deadline arose, in part, as a result of issues experienced by the regulated community with several aspects of electronic reporting that were brought to the Agency's attention only recently. Specifically, these issues include difficulties with inexact entries when using XML Schema and the length of time for data validation.

    B. What is the Agency's authority for taking this action?

    The CDR rule was issued pursuant to the authority of TSCA section 8(a), 15 U.S.C. 2607(a). Under section 553(b)(3)(B) of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B), the Agency may issue a final rule without a prior proposal if it finds that notice and public participatory procedures are impracticable, unnecessary, or contrary to the public interest. In this case, for the extension sought, the Agency does find that normal notice and public process rulemaking is impracticable. Given that the current reporting deadline is September 30, 2016, it is impracticable to follow notice and comment procedures on an extension of that deadline, because that process would not allow the rule to be finalized before the current reporting deadline. The Agency only recently learned that the regulated community was having difficulty related to the required electronic reporting mechanism. Individual entities provided information about technical issues and reporting difficulties, but the collective significance of these issues was not apparent until the Agency completed review of a letter from the American Chemistry Council dated August 30, 2016 (Ref. 1).

    This action does not alter the substantive CDR reporting requirements in any way. The Agency also believes the one-time extension will not result in a significant delay in the processing and availability of CDR information to potential users. Further, this action is consistent with the public interest because it is designed to facilitate compliance with the CDR rule and to ensure that the 2016 collection includes accurate data on chemical manufacturing, processing, and use in the United States. Finally, any impact on the regulated community is expected to be beneficial given that the one-time extension provides additional time to submit accurate CDR reports to EPA.

    Similarly, under APA section 553(d), 5 U.S.C. 553(d), the Agency may make a rule immediately effective “for good cause found and published with the rule.” For the reasons discussed in this unit, EPA believes that there is “good cause” to make this amendment effective upon publication in the Federal Register.

    III. References

    The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the technical person listed under FOR FURTHER INFORMATION CONTACT.

    1. American Chemistry Council. “Request for an Extension to the TSCA Chemical Data Reporting (CDR) 2016 Submission Period [Letter].” August 30, 2016.

    IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866 and Executive Order 13563

    This action is classified as a final rule because it makes an amendment to the Code of Federal Regulations (CFR). The amendment to the CFR is necessary to allow for a one-time extension to the 2016 CDR reporting period. This action does not impose any new requirements or amend substantive requirements. This action is not a “significant regulatory action” under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993) and Executive Order 13563 entitled “Improving Regulation and Regulatory Review” (76 FR 3821, January 21, 2011).

    B. Paperwork Reduction Act (PRA)

    This final rule does not contain any new or revised information collections subject to OMB approval under the PRA, 44 U.S.C. 3501 et seq.

    C. Regulatory Flexibility Act (RFA)

    This final rule is not subject to the RFA, 5 U.S.C. 601 et seq. The RFA applies only to rules subject to notice and comment rulemaking requirements under the APA, 5 U.S.C. 553, or any other statute. This rule is not subject to notice and comment requirements under the APA because the Agency has invoked the APA “good cause” exemption.

    D. Unfunded Mandates Reform Act (UMRA) and Executive Orders 13132 and 13175

    This action will not have substantial direct effects on State or tribal governments, on the relationship between the Federal Government and States or Indian tribes, or on the distribution of power and responsibilities between the Federal Government and States or Indian tribes. As a result, no action is required under Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), or under Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). Nor does it impose any enforceable duty or contain any unfunded mandate as described under Title II of UMRA, 2 U.S.C. 1531-1538.

    E. Executive Orders 13045, 13211, and 12898

    This action is not a “significant regulatory action” as defined by Executive Order 12866. As a result, this action is not subject to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) and Executive Order 13211 entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). In addition, this action also does not 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).

    F. National Technology Transfer and Advancement Act (NTTAA)

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

    V. Congressional Review Act (CRA)

    This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 711

    Environmental protection, Chemicals, Confidential Business Information (CBI), Hazardous materials, Importer, Manufacturer, Reporting and recordkeeping requirements.

    Dated: September 16, 2016. Jim Jones, Assistant Administrator, Office of Chemical Safety and Pollution Prevention.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 711—[AMENDED] 1. The authority citation for part 711 continues to read as follows: Authority:

    15 U.S.C. 2607(a).

    2. In § 711.20, revise the second and third sentences to read as follows.
    § 711.20 When to report.

    * * * The 2016 CDR submission period is from June 1, 2016 to October 31, 2016. Subsequent recurring submission periods are from June 1 to September 30 at 4-year intervals, beginning in 2020.* * *

    [FR Doc. 2016-22974 Filed 9-23-16; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 1 [MD Docket No. 16-166; FCC 16-121] Assessment and Collection of Regulatory Fees for Fiscal Year 2016 AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    In this document the Commission revises its Schedule of Regulatory Fees to recover an amount of $384,012,497 that Congress has required the Commission to collect for fiscal year 2016. Section 9 of the Communications Act of 1934, as amended, provides for the annual assessment and collection of regulatory fees for annual “Mandatory Adjustments” and “Permitted Amendments” to the Schedule of Regulatory Fees.

    DATES:

    Effective September 26, 2016. To avoid penalties and interest, regulatory fees should be paid by the due date of September 27, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Roland Helvajian, Office of Managing Director at (202) 418-0444.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Report and Order (R&O), FCC 16-121, MD Docket No. 16-166, adopted on September 1, 2016 and released on September 2, 2016.

    I. Administrative Matters A. Final Regulatory Flexibility Analysis

    1. As required by the Regulatory Flexibility Act of 1980 (RFA),1 the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) relating to this Report and Order. The FRFA is located towards the end of this document.

    1See 5 U.S.C. 603. The RFA, see 5 U.S.C. 601-612, has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Public Law 104-121, Title II, 110 Stat. 847 (1996). The SBREFA was enacted as Title II of the Contract with America Advancement Act of 1996 (CWAAA).

    B. Final Paperwork Reduction Act of 1995 Analysis

    2. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

    C. Congressional Review Act

    3. The Commission will send a copy of this Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

    II. Introduction

    4. This Report and Order adopts a schedule of regulatory fees to assess and collect $384,012,497.00 in regulatory fees for Fiscal Year (FY) 2016, pursuant to Section 9 of the Communications Act of 1934, as amended (Communications Act or Act) and the Commission's FY 2016 Appropriation.2 The schedule of regulatory fees for FY 2016 adopted here is attached in Table 4. These regulatory fees are due on September 27, 2016. The FY 2016 regulatory fees are based on the proposals in the FY 2016 NPRM, 3 considered in light of the comments received and Commission analysis. The FY 2016 regulatory fee schedule includes the following changes from last year: (1) An increase in regulatory fees across all fee categories to offset the Commission's facilities reduction costs; 4 (2) an updated regulatory fee for Direct Broadcast Satellite (DBS) providers, a subcategory in the cable television and Internet Protocol Television (IPTV) category; and (3) adjustments to the regulatory fees on radio and television broadcasters, based on type and class of service and on the population served.

    2 47 U.S.C. 159. Consolidated Appropriations Act, 2016, Public Law 114-113, Dec. 18, 2015.

    3Assessment and Collection of Regulatory Fees for Fiscal Year 2016, Notice of Proposed Rulemaking, 81 FR 35680 (June 3, 2016) (2016) (FY 2016 NPRM).

    4 The proposed regulatory fee rates for FY 2016 includes a one-time amount of $44,168,497 to offset facilities reduction costs, i.e., to reduce the office space footprint and/or move the FCC office location if necessary. Consolidated Appropriations Act, 2016, Public Law 114-113, Dec. 18, 2015. See FCC's Lease Prospectus, available at http://www.gsa.gov/portal/category/100435.

    III. Background

    5. Congress adopted a regulatory fee schedule in 1993 5 and authorized the Commission to assess and collect annual regulatory fees pursuant to the schedule, as amended by the Commission.6 As a result, the Commission annually reviews the regulatory fee schedule, proposes changes to the schedule to reflect changes in the amount of its appropriation, and proposes increases or decreases to the schedule of regulatory fees.7 The Commission makes changes to the regulatory fee schedule “if the Commission determines that the schedule requires amendment to comply with the requirements” 8 of section 9(b)(1)(A) of the Act.9 The Commission may also add, delete, or reclassify services in the fee schedule to reflect additions, deletions, or changes in the nature of its services “as a consequence of Commission rulemaking proceedings or changes in law.” Thus, for each fiscal year, the Commission proposes a fee schedule in the annual Notice of Proposed Rulemaking that reflects changes in the amount appropriated for the performance of the Commission's regulatory activities, changes in the industries represented by the regulatory fee payors, changes in FTE 10 levels, and any other issues of relevance to the proposed fee schedule.11 After reviewing the comments, the Commission issues a Report and Order adopting the fee schedule for the fiscal year and sets out the procedures for payment of fees.

    5 47 U.S.C. 159(g) (showing original fee schedule prior to Commission amendment).

    6 47 U.S.C. 159.

    7 47 U.S.C. 159(b)(1)(B).

    8 47 U.S.C. 159(b)(2).

    9 47 U.S.C. 159(b)(1)(A).

    10 One FTE, a “Full Time Equivalent” or “Full Time Employee,” is a unit of measure equal to the work performed annually by a full time person (working a 40 hour workweek for a full year) assigned to the particular job, and subject to agency personnel staffing limitations established by the U.S. Office of Management and Budget.

    11 Section 9(b)(2) discusses mandatory amendments to the fee schedule and Section 9(b)(3) discusses permissive amendments to the fee schedule. Both mandatory and permissive amendments are not subject to judicial review. 47 U.S.C. 159(b)(2) and (3).

    6. The Commission calculates the fees by first determining the number of FTEs performing the regulatory activities specified in section 9(a), “adjusted to take into account factors that are reasonably related to the benefits provided to the payor of the fee by the Commission's activities. . . .” 12 FTEs are categorized as “direct” if they are performing regulatory activities in one of the “core” bureaus, i.e., the Wireless Telecommunications Bureau, Media Bureau, Wireline Competition Bureau, and part of the International Bureau. All other FTEs are considered “indirect.” 13 The total FTEs for each fee category is calculated by counting the number of direct FTEs in the core bureau that regulates that category, plus a proportional allocation of indirect FTEs. Next, the Commission allocates the total amount to be collected among the various regulatory fee categories. This allocation is based on the number of FTEs assigned to work in each regulatory fee category. Each regulatee within a fee category pays its proportionate share based on an objective measure, e.g., revenues, number of subscribers, or licenses.14

    12 47 U.S.C. 159(b)(1)(A). When section 9 was adopted, the total FTEs were to be calculated based on the number of FTEs in the Private Radio Bureau, Mass Media Bureau, and Common Carrier Bureau. (The names of these bureaus were subsequently changed.) Satellites, earth stations, and international bearer circuits were regulated through the Common Carrier Bureau before the International Bureau was created.

    13 The indirect FTEs are the employees from the International Bureau (in part), Enforcement Bureau, Consumer & Governmental Affairs Bureau, Public Safety & Homeland Security Bureau, Chairman and Commissioners' offices, Office of the Managing Director, Office of General Counsel, Office of the Inspector General, Office of Communications Business Opportunities, Office of Engineering and Technology, Office of Legislative Affairs, Office of Strategic Planning and Policy Analysis, Office of Workplace Diversity, Office of Media Relations, and Office of Administrative Law Judges, totaling 1,046 indirect FTEs.

    14See Assessment and Collection of Regulatory Fees, Notice of Proposed Rulemaking, 27 FCC Rcd 8458, 8461-62, paragraphs 8-11 (2012) (FY 2012 NPRM).

    7. As part of its annual review, the Commission regularly seeks to improve its regulatory fee analysis.15 For example, in FY 2013, the Commission updated FTE allocations to more accurately reflect the number of FTEs working on regulation and oversight of the regulatees in the various fee categories, and now updates the FTE allocations annually; 16 combined the UHF and VHF television stations into one regulatory fee category; 17 and included IPTV in the cable television fee category.18 In FY 2014, we adopted a new fee category for toll free numbers, in the ITSP fee category; 19 increased the de minimis threshold; 20 and eliminated several categories from the regulatory fee schedule.21 In FY 2015, we added a subcategory for DBS providers in the cable television and IPTV regulatory fee category.22

    15See Assessment and Collection of Regulatory Fees for Fiscal Year 2008, MD Docket No. 08-65, Report and Order and Further Notice of Proposed Rulemaking, 24 FCC Rcd 6388 (2008) (FY 2008 Further Notice).

    16Assessment and Collection of Regulatory Fees for Fiscal Year 2013, MD Docket No. 08-65, Report and Order, 28 FCC Rcd 12351, 12354-58, paragraphs 10-20 (2013) (FY 2013 Report and Order).

    17FY 2013 Report and Order, 28 FCC Rcd at 12361-62, paragraphs 29-31.

    18Id., 28 FCC Rcd at 12362-63, paragraphs 32-33.

    19Assessment and Collection of Regulatory Fees for Fiscal Year 2014, Report and Order and Further Notice of Proposed Rulemaking, 29 FCC Rcd 10767, 10777-79, paras. 25-28 (2014) (FY 2014 Report and Order).

    20FY 2014 Report and Order, 29 FCC Rcd at 10774-76, paragraphs 18-21.

    21Id., 29 FCC Rcd at 10776-77, paragraphs 22-24.

    22Assessment and Collection of Regulatory Fees for Fiscal Year 2015, Notice of Proposed Rulemaking, Report and Order, and Order, 30 FCC Rcd 5354, 5364-5373, paragraphs 28-41 (2015) (FY 2015 NPRM). We also eliminated two additional fee categories. See FY 2015 NPRM, 30 FCC Rcd at 5361-62, paragraphs 19-22.

    8. In our FY 2016 NPRM, we proposed to collect $384,012,497.00 in regulatory fees and included a detailed, proposed fee schedule. We received 17 comments and 10 reply comments.23

    23 Commenters to the FY 2016 NPRM are listed in Table 2.

    IV. Discussion

    9. In this FY 2016 Report and Order, we adopt a regulatory fee schedule for FY 2016, pursuant to section 9 of the Communications Act and our FY 2016 appropriation statute in order to collect $384,012,497.00 in regulatory fees.24 Of this amount, we project approximately $21.3 million (5.6 percent of the total FTE allocation) in fees from the International Bureau regulatees; 25 $83.1 million (21.6 percent of the total FTE allocation) in fees from the Wireless Telecommunications Bureau regulatees; 26 $146.5 million (38.0 percent of the total FTE allocation) from Wireline Competition Bureau regulatees; 27 and $134.0 million (34.8 percent of the total FTE allocation) from the Media Bureau regulatees.28 These regulatory fees are due on September 27, 2016. The schedule of regulatory fees for FY 2016 adopted here is attached as Table 4.

    24 Section 9 regulatory fees are mandated by Congress and collected to recover the regulatory costs associated with the Commission's enforcement, policy and rulemaking, user information, and international activities. 47 U.S.C. 159(a). See Consolidated Appropriations Act, 2016, Public Law 114-113, Dec. 18, 2015, requiring the Commission to collect, for FY 2016, $339,844,000 for operational expenses and an additional one time amount of $44,168,497 to offset facilities reduction costs.

    25 Includes satellites, earth stations, and international bearer circuits (submarine cable systems and satellite and terrestrial bearer circuits).

    26 Includes Commercial Mobile Radio Service (CMRS), CMRS messaging, Broadband Radio Service/Local Multipoint Distribution Service (BRS/LMDS), and multi-year wireless licensees.

    27 Includes Interstate Telecommunications Service Providers (ITSP) and toll free numbers.

    28 Includes AM radio, FM radio, television (including low power and Class A, TV/FM translators and boosters, cable and IPTV, DBS, and Cable Television Relay Service (CARS) licenses.

    1. Facilities Reduction

    10. The regulatory fee rates for FY 2016 include $339,844,000 for operational expenses and an additional one time amount of $44,168,497 to offset facilities reduction costs, i.e., to reduce the FCC's office space footprint and/or move the FCC office location.29 Due to the facilities reduction costs, regulatees' aggregate fees by category increased on average by approximately 11-13 percent for 2016. Some commenters disagree with this approach.30 We are, however, required by Congress to collect this amount for FY 2016.31

    29 Consolidated Appropriations Act, 2016, Public Law 114-113, Dec. 18, 2015. See FCC's Lease Prospectus, available at http://www.gsa.gov/portal/category/100435.

    30See, e.g., PMCM TV Comments at 2 (“Congress has never given the Commission a carte blanche to recover all of its costs through the regulatory fee mechanism.”); AT&T Comments at 3 (“This sum is especially unsuitable for inclusion in the regulatory fee request.”).

    31 Consolidated Appropriations Act, 2016, Public Law 114-113, Dec. 18, 2015.

    2. Toll Free Numbers

    11. In the FY 2014 Report and Order, 32 we adopted a regulatory fee category for each toll free number managed by a RespOrg.33 In the FY 2015 Report and Order, we adopted a regulatory fee of 12 cents per toll free number.34 We proposed a regulatory fee of 13 cents per toll free number in the FY 2016 NPRM.35 AT&T objects to the increase from 12 cents to 13 cents per year, and contends that we have not demonstrated increased regulatory oversight of RespOrgs to justify this increase.36 We identified in the FY 2016 NPRM that regulatory fees increased for all regulatee categories due to the one time increase for facilities reduction costs,37 which includes a one cent fee increase for toll free numbers. Pursuant to our obligations under section 9 of the Act and related Commission orders, we therefore adopt the fee proposed in the FY 2016 NPRM.38

    32FY 2014 Report and Order, 29 FCC Rcd at 10777-79, paragraphs 25-28. We adopted this category for working, assigned, and reserved toll free numbers and for toll free numbers that are in the “transit” status, or any other status as defined in section 52.103 of the Commission's rules. The regulatory fee is limited to toll free numbers that are accessible within the United States.

    33 A Responsible Organization or RespOrg is a company that manages toll free telephone numbers for subscribers. RespOrgs use the SMS/800 database to verify the availability of specific numbers and to reserve the numbers for subscribers. See 47 CFR 52.101(b). Commission FTEs in the Wireline Competition Bureau and the Enforcement Bureau work on toll free numbering issues and other related activities. As a result, the Commission adopted a regulatory fee for each toll free number controlled or managed by a RespOrg because many toll free numbers are controlled or managed by RespOrgs that are not carriers, and therefore, had not been paying regulatory fees. In the FY 2014 Report and Order, we stated that: “Based on evaluation, the FTEs involved in toll free issues are primarily from the Wireline Competition Bureau. . . . Accordingly, a regulatory fee assessed on toll free numbers reduces the ITSP regulatory fee total.” FY 2014 Report and Order, 29 FCC Rcd at 10778, paragraph 27 (footnote omitted).

    34 Assessment and Collection of Regulatory Fees for Fiscal Year 2015, Report and Order and Further Notice of Proposed Rulemaking, 30 FCC Rcd 10268, 10271-72, para. 9 (2015) (FY 2015 Report and Order).

    35FY 2016 NPRM, 81 FR 35680 at 35689, Table 3.

    36 AT&T Comments at 4. Somos questions the increase and observes that the Commission's lease after the move (or facilities reduction) should decrease which should result in lower regulatory fees in the future. Somos Comments at 2-3.

    37FY 2016 NPRM, 81 FR 35680, at 35683, note 20.

    38See supra note 23.

    3. International Bureau Issues a. International Bearer Circuits

    12. Facilities-based common carriers must pay regulatory fees for terrestrial and satellite International Bearer Circuits (IBCs) active (used or leased) as of December 31 of the prior year in any terrestrial or satellite transmission facility for the provision of service to an end user or resale carrier.39 In addition, non-common carrier satellite operators must pay a fee for each circuit they and their affiliates hold and each circuit sold or leased to any customer, other than an international common carrier authorized by the Commission to provide U.S. international common carrier services.40 In the FY 2016 NPRM, and previously in FY 2015 Report and Order, we sought comment on how to ensure that all providers calculate and report IBCs in the same manner and how we could improve our requirements and regulatory treatment of terrestrial and satellite IBC.41

    39See infra paragraph 42.

    40Id.

    41FY 2016 NPRM, 81 FR 35680 at 35684, paragraphs 20-21.

    13. We also sought comment on whether to eliminate the distinction between common carrier terrestrial circuits and non-common carrier terrestrial circuits for regulatory fee purposes.42 In doing so, we observed the telecommunications industry and Commission's rules have evolved. We also sought comment on the least burdensome methodology for calculating fees, whether international revenue rather than the number of circuits would be a useful data source, and asked how to ensure accurate reporting of both common carrier and non-common carrier terrestrial circuits.43

    42 The Commission previously explored whether carriers should be assessed regulatory fees for their terrestrial non-common carrier circuits, but declined to do so at that time because of the “complexity of the legal, policy and equity issues involved.” Assessment and Collection of Regulatory Fees for Fiscal Year 2009, Report and Order, 24 FCC Rcd 10301, 10306-307, paragraphs 16-17 (2009) (FY 2009 Report and Order). On March 17, 2009, the Commission adopted in the Submarine Cable Order a new submarine cable bearer circuit methodology that allocates IBC costs among service providers in an equitable and competitively neutral manner, without distinguishing between common carriers and non-common carriers, by assessing a flat per cable landing license fee for all submarine cable systems. Assessment and Collection of Regulatory Fees for Fiscal Year 2008, Second Report and Order, 24 FCC Rcd 4208, 4214-16, paragraphs 13-17 (2009) (Submarine Cable Order).

    43FY 2016 NPRM, 81 FR at 35680, at 35685, paragraph 21.

    14. Only Level 3 commented, proposing that we revise our regulatory fee methodology for terrestrial international bearer circuits and adopt a flat-fee methodology similar to the method we use to assess fees for submarine cable systems.44 This proposal would include common carrier and non-common carrier circuits.45 Level 3 contends that this would be simpler to administer and would reduce underreporting.46 We agree with Level 3 that there is need to evaluate the changes in the international services marketplace and update our fee methodology to reflect the changes and make it simpler and more efficient to administer. We find, however, that the record in this proceeding is insufficient to make any comprehensive changes to the fee methodology at this time.47 To adequately evaluate the changes to the marketplace, a separate rulemaking proceeding to comprehensively review the methodology used for assessing fees for terrestrial and satellite international bearer circuits is needed, including the allocation of the international bearer circuit fee category between terrestrial and satellite circuits and submarine cable systems. Accordingly, we make no changes to fee rules governing the IBCs based on the record in this proceeding.

    44 Level 3 Comments at 3 (citing Submarine Cable Order).

    45Id. at 3, 5.

    46Id. at 3-5. Level 3 explains that this proposal would reduce the burden on payors. Id. at 5.

    47 We received no comments in response to Level 3's proposed methodology.

    b. Earth Stations

    15. In the FY 2014 NPRM, we recognized that the International Bureau's oversight and regulation of the satellite industry involves FTEs working on legal, technical, and policy issues pertaining to both space station and earth station operations and is therefore interdependent to some degree.48 For that reason, in the FY 2014 regulatory fee proceeding, we increased the regulatory fees paid by earth station licensees by approximately 7.5 percent based on analysis and review of the record.49 In the FY 2015 NPRM, we sought comment on whether to raise the earth station regulatory fees again.50 However, we declined to adopt an increase in fees in FY 2015 due to an ongoing proceeding concerning part 25 (Satellite Communications) of the Commission's rules which could affect the distribution of FTE work. In the FY 2016 NPRM, we sought comment on this issue—specifically on EchoStar's proposal to assess different levels of regulatory fees on different types of earth station licenses.51

    48FY 2014 NPRM, 29 FCC Rcd at 6428, paragraph 29.

    49See FY 2014 Report and Order, 29 FCC Rcd at 10772-73, paragraph 12.

    50FY 2015 NPRM, 30 FCC Rcd at 5360, paragraph 14.

    51See EchoStar July 20, 2015 Ex Parte.

    16. EchoStar now observes that since it submitted its proposal, we have adopted reforms that streamlined the reporting process for satellite earth stations, which has addressed an unequal reporting burden and reduced administrative burdens.52 For this reason, EchoStar contends that all satellite earth stations should have the same regulatory fee, and no longer supports its earlier proposal.53

    52 EchoStar Comments at 3 (discussing elimination of the annual reporting requirement for blanket FSS earth station licenses in the 20/30 GHz bands). See also Comprehensive Review of Licensing and Operation Rules for Satellite Services, Second Report and Order, 30 FCC Rcd 14713 (2015).

    53 EchoStar Comments at 2-3.

    17. No parties commented in favor of the proposal. At this time, we see no basis to assess different levels of regulatory fees on different types of earth station licensees. Accordingly, we adopt the earth station fee proposed in the FY 2016 NPRM.

    c. Submarine Cable

    18. We did not specifically seek comment on issues pertaining to the submarine cable industry. The proposed rates in the FY 2016 NPRM contained a fee increase due to the one-time increase for facilities reduction expenses 54 and a change in submarine cable units. A group of submarine cable operators contends that the proposed rate is too high and not justified.55 Specifically, the Submarine Cable Coalition questions the methodology for the proposed fees and argues that the proposed fees are disproportionate to the benefits received by submarine cable operators and the minimal regulatory oversight by the Commission, after the licensing process.56 Further the Submarine Cable Coalition states that the Commission should not overcharge low-cost regulatees to subsidize for high-cost regulatees and recommends that the Commission reduce the regulatory fees commensurate with the amount of regulatory activity undertaken.57 As we have previously stated, the regulatory fees paid by the submarine cable operators cover not just the services provided those entities, but also the services provided to the common carriers that use the submarine cables to provide service.58 The regulatory fees are also not intended to recover only the costs of Title II regulation, but also the costs of our enforcement, policy and rulemaking, user information and international activities that benefit all entities involved in international telecommunications.59 We also note that since release of the FY 2016 NPRM, the units used to calculate fees has been updated with more recent data. Accordingly, the fees listed in Table 3 are less than the amount proposed in the FY 2016 NPRM. Nevertheless, we remind all regulatees, including submarine cable operators, the FY 2016 regulatory fees include the facilities reduction costs.

    54FY 2016 NPRM, 81 FR 35680, at 35683, note 20.

    55 Submarine Cable Coalition Comments at 3-7.

    56Id. at 2-4, 6-7.

    57Id.

    58See FY 2015 Report and Order, 30 FCC Rcd at 10273-74, paragraph 12.

    59Assessment and Collection of Regulatory Fees for Fiscal Year 1997, MD Docket No. 96-186, Report and Order, 12 FCC Rcd at 17188, paragraphs 68-69 (1997) (FY 1997 Report and Order).

    4. FTE Reallocations

    19. ITTA has proposed in past regulatory fee proceedings that wireless providers should be combined into the ITSP fee category so that all voice providers pay regulatory fees on the same basis.60 ITTA continues to endorse this approach and contends that the wireline and wireless voice services are subject to many of the same regulatory policies, programs, and obligations and therefore combining these voice services into the ITSP category is an appropriate measure to comply with section 9 of the Act.61 ITTA explains that due to changes in the communications industry and the convergence of technologies, the Wireline Competition Bureau FTEs' work is no longer focused on ITSPs.62 According to ITTA, the work performed by Wireline Competition Bureau FTEs on universal service issues impacts various types of communications providers, not just ITSPs.63

    60See FY 2015 Report and Order, 30 FCC Rcd at 10281-82, paragraphs 31-34; FY 2014 NPRM, 29 FCC Rcd at 6430-31, paragraphs 36-39; FY 2013 NPRM, 28 FCC Rcd at 7796, paragraph 12; FY 2008 FNPRM, 24 FCC Rcd at 6404-05, paragraphs 40-41.

    61 ITTA Comments at 6.

    62Id.

    63Id. at 7. ITTA also lists other issues that it contends are within the Wireline Competition Bureau but affect entities that are not ITSPs, such as number portability, 911 emergency access, special access, rate integration, customer proprietary network information, pole attachments, and CALEA. ITTA Comments at 7.

    20. Certain commenters agree with ITTA's proposals.64 For example, NTCA contends that updating the ITSP category to include wireless revenues would be a “rational step.” 65 CenturyLink explains that this would be analogous to including VoIP providers in the ITSP category and DBS in the cable television/IPTV category.66 Frontier states that the work of various Wireline Competition Bureau divisions is “inseparable from wireless carriers” and the divisions work “for the benefit of . . . all telecommunications service providers.” 67 These commenters also support allocating Wireless Telecommunications Bureau FTEs to the Wireline Competition Bureau for regulatory fee purposes.68 In addition, Frontier supports requiring broadband Internet service providers to pay ITSP regulatory fees.69

    64See, e.g. , NTCA Comments at 2-4; CenturyLink Comments at 1-6; Frontier Comments at 1-9; ACA Comments at 11-14.

    65 NTCA Comments at 3.

    66 CenturyLink Comments at 4-5.

    67 Frontier Comments at 6.

    68 Frontier Comments at 7-8; NTCA Comments at 3; CenturyLink Comments at 6-8.

    69 Frontier Comments at 9.

    21. ITTA and CenturyLink argue that if wireless and wireline voice services are not combined in the ITSP category or Wireline Competition Bureau FTEs are not allocated to the Wireless Telecommunications Bureau for regulatory fee purposes, we should reassign some Wireline Competition Bureau FTEs as indirect FTEs.70 ITTA contends that the high-cost and Lifeline universal service programs benefit regulatees in addition to ITSPs and that we should therefore “adjust its fee structure to account for this industry crossover.” 71 Commenters contend that all Wireline Competition Bureau FTEs that work on “cross-jurisdictional issues” such as numbering and universal service should be reassigned as indirect.72

    70 ITTA Comments at 8-9; CenturyLink Comments at 7-8.

    71 ITTA Comments at 7-8.

    72 Frontier Comments at 8 & 10; ITTA Comments at 10; CenturyLink Comments at 7. CenturyLink also contends that FTEs working on 911 issues should be indirect. CenturyLink Comments at 7. As CTIA observes, these FTEs are primarily in the Public Safety and Homeland Security Bureau and are indirect. CTIA Reply Comments at 5.

    22. CTIA disagrees with the ITTA proposal and contends that there is no basis to reassign Wireline Competition Bureau FTEs to the Wireless Telecommunications Bureau because Wireless Telecommunications Bureau FTEs already participate in wireline proceedings to the extent they raise wireless issues.73 Also, substantial differences exist between wireless and wireline services concerning regulatory oversight which militate against combining, based on revenues, the CMRS and ITSP fee categories.74 Wireless providers are not subject to the regulations and requirements imposed on ITSPs, and logically combining CMRS into the ITSP category (based on revenues) merely because both offer voice services ignores the fundamental differences in the work done by FTEs in these two bureaus.75 CTIA further contends that there is insufficient information to support a clear case for the reclassification of FTEs that work on universal service or numbering issues from direct to indirect.76

    73 CTIA Comments at 2 & Reply Comments at 2. CTIA also observes that the ITTA proposal would result in CMRS providers paying regulatory fees based on Wireless Telecommunications Bureau FTEs and Wireline Competition Bureau FTEs. CTIA Reply Comments at 3.

    74 CTIA Comments at 2 & Reply Comments at 2-3.

    75 CTIA Comments at 2-3 (citing FY 2016 NPRM, 31 FCC Rcd at 5765-66, paragraph 18.).

    76Id. at 3-5.

    23. CTIA stresses that the number of FTEs working on any given issue could change significantly year-to-year depending on the individual proceedings the Commission undertakes in any given year, e.g., there has been significant work within the past year on adopting and implementing various components of the Connect America Fund (CAF), reforming the Lifeline Program, and implementing procedures to allow VoIP providers to obtain numbers directly from the numbering administrator.77 CTIA therefore recommends additional detailed analysis to demonstrate whether and how the number of FTEs working on particular issues may fluctuate and thus the impact of the potential reclassification of those FTEs as indirect.78

    77 CTIA Comments at 5 & Reply Comments at 3.

    78 CTIA Comments at 5 & Reply Comments at 3-5.

    24. The Commission has emphasized that reallocation of some of the International Bureau's FTEs as indirect was a “singular case” because the work of those International Bureau FTEs “primarily benefits licensees regulated by other bureaus.” 79 We have further stated, “apart from the unique nature of the International Bureau FTEs, the work of all the FTEs in a core bureau contributes to the cost of regulating and overseeing the licensees of that bureau.” 80 We concluded that “[g]iven the significant implications of reassignment of FTEs in our fee calculation, we make changes to FTE classifications only after performing considerable analysis and finding the clearest case for reassignment.” 81

    79FY 2013 Report and Order, 28 FCC Rcd at 12355, paragraph 14.

    80FY 2015 Report and Order, 30 FCC Rcd at 10274, paragraph 15.

    81Id. 30 FCC Rcd at 10274-75, paragraph 15.

    25. After reviewing the record, we decline to adopt the ITTA proposal. In particular, we conclude that ITTA's proposal does not address this issue in a manner that is reasonable and in compliance with section 9 of the Act. ITTA does not contend that industries other than those in the ITSP regulatory fee category, i.e., CMRS, are subject to the oversight and regulation of the Wireline Competition Bureau or that CMRS creates significant costs for the Wireline Competition Bureau due to such oversight and regulation. We recognize that the CMRS industry participates in the universal service Lifeline program, and that the Wireline Competition Bureau FTEs are responsible for the oversight and regulation of the universal service mechanisms. We are not convinced at this time that this relationship is sufficient to support a reassignment of the FTEs from the Wireline Competition Bureau to the Wireless Telecommunications Bureau, particularly when the FTEs closely involved in wireless Lifeline issues are indirect FTEs, in the Enforcement Bureau and elsewhere, addressing compliance with the Commission's rules.

    26. Further, the number of FTEs working on any given issue changes significantly depending on the individual proceedings the Commission undertakes in any given year. We now update FTE allocations on an annual basis to more accurately reflect the number of FTEs working on regulation and oversight of the regulatees in the various fee categories.82 To attempt to reallocate Wireline Competition Bureau FTEs each year based on particular work assignments is a subjective process that would likely result in unpredictable fluctuations in regulatory fees from year to year. In addition, to the extent wireline proceedings raise wireless issues, Wireless Telecommunications Bureau FTEs already are involved in work related to the wireless issues in such proceedings.83

    82See FY 2015 Report and Order, 30 FCC Rcd at 10274, paragraph 15.

    83 CTIA Comments at 2.

    27. ITTA's proposals also do not take into account that many indirect FTEs throughout the Commission outside of the Wireline Competition Bureau work on universal service and other wireline issues. For example, indirect FTEs in the Enforcement Bureau, Office of Managing Director, as well as other bureaus and offices work on various universal service issues. Therefore, it is incorrect to contend that primarily FTEs in the Wireline Competition Bureau are devoted to all of the universal service issues. Further, ITTA's proposal to reassign some or all of the Wireline Competition Bureau FTEs working on universal service as indirect FTEs ignores licensees not involved in high-cost and Lifeline universal service issues, such as radio and television broadcasters, that would be responsible for contributing to the cost of those Wireline Competition Bureau FTEs. Although we recognize Wireline Competition Bureau proceedings can affect other industries, such as CMRS, we are not convinced that this demonstrates the “clearest case” for reassignment of FTEs. For these reasons, we decline to adopt the ITTA proposal at this time.

    5. DBS Rate Issues

    28. In 2015, we adopted the initial regulatory fee for DBS as a subcategory in the cable television and IPTV category of 12 cents per year per subscriber, or one cent per month.84 At that time, we stated that we would update the rate as necessary to ensure an appropriate level of regulatory parity and considering the resources dedicated to this subcategory.85 Such examination is consistent with a report issued by the Government Accountability Office (GAO) in 2012, which observed it is important for the Commission to “regularly update analyses to ensure that fees are set based on relevant information.” 86 When we adopted this regulatory fee subcategory for DBS, we observed that numerous regulatory developments had increased the Media Bureau FTE activity involving regulation and oversight of multichannel video programming distributors (MVPDs), including DBS providers.87 For example, DBS providers (and cable television operators) are permitted to file program access complaints 88 and retransmission consent complaints.89 In addition, DBS providers are subject to MVPD requirements such as those pertaining to program carriage 90 and the requirement to negotiate retransmission consent in good faith.91 We also observed that the Commission had recently adopted requirements that apply to all MVPDs and thus equally apply to DBS providers as part of its implementation of the Commercial Advertisement Loudness Mitigation Act (CALM Act),92 the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA),93 as well as the Satellite Television Extension and Localism Act (STELA) Reauthorization Act of 2014 (STELAR).94

    84FY 2015 Report and Order and FNPRM, 30 FCC Rcd at 10276-77, paragraphs 19-20.

    85Id., 30 FCC Rcd at 10277, paragraph 20.

    86 GAO “Federal Communications Commission Regulatory Fee Process Needs to be Updated,” GAO-12-686 (August 2012) at 12, available at http://www.gao.gov/products/GAO-12-686.

    87See FY 2015 Report and Order, 30 FCC Rcd at 5367-68, paragraph 31.

    88 47 U.S.C. 548; 47 CFR 76.1000-1004.

    89 47 U.S.C. 325(b)(1), (3)(C)(ii); 47 CFR 76.65(b).

    90 47 U.S.C. 536; 47 CFR 76.1300-1302.

    91 47 U.S.C. 325(b)(3)(C)(iii); 47 CFR 76.65(a)-(b).

    92See Implementation of the Commercial Advertisement, Loudness Mitigation (CALM) Act, Report and Order, 26 FCC Rcd 17222 (2011) (CALM Act Report and Order).

    93 Public Law 111-260, 124 Stat. 2751 (2010). See also Amendment of Twenty-First Century Communications and Video Accessibility Act of 2010, Public Law 111-265, 124 Stat. 2795 (2010) (making corrections to the CVAA); 47 CFR part 79; Video Description: Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Notice of Proposed Rulemaking, 31 FCC Rcd 2463 (2016).

    94 The STELA Reauthorization Act of 2014 (STELAR), Public Law 113-200, 128 Stat. 2059 (2014). STELAR was enacted on Dec. 4, 2014 (H.R. 5728, 113th Cong.). Commission work on implementation of the Act was immediate. See, e.g., Implementation of Sections 101, 103 and 105 of the STELA Reauthorization Act of 2014, Order, 30 FCC Rcd 2380 (2015) (implementing certain STELAR provisions under the “good cause” exception to the Administrative Procedure Act); Amendment to the Commission's Rules Concerning Market Modification, Implementation of Section 102 of the STELA Reauthorization Act of 2014, Report and Order, 30 FCC Rcd 10406 (2015) (adopting satellite television market modification rules to enable satellite carriers, cable operators, and commercial television stations to better serve the interests of their local communities); Implementation of Section 103 of the STELA Reauthorization Act of 2014, Notice of Proposed Rulemaking, 30 FCC Rcd 10327 (2015) (seeking comment on potential updates to the “totality of the circumstances” test for good faith negotiation of retransmission consent); Final Report of the DSTAC, available at https://transition.fcc.gov/dstac/dstac-report-final-08282015.pdf; “Media Bureau Seeks Comment on DSTAC Report,” Public Notice, 30 FCC Rcd 15293 (MB 2015); “Media Bureau Seeks Comment for Report Required by the STELA Reauthorization Act of 2014,” Public Notice, 30 FCC Rcd 1904 (2015) (seeking information for a report to Congress on designated market areas and considerations for fostering increased localism).

    29. In the FY 2016 NPRM, we observed that DBS, along with other MVPDs, continues to receive increased oversight and regulation as a result of the work of Media Bureau FTEs. For example, we recently adopted a Report and Order requiring cable television operators, DBS providers, and certain other licensees to post their public file documents to the FCC-hosted online database.95 In addition, we recently released a Notice of Proposed Rulemaking pertaining to set-top boxes of cable television and DBS operators.96 These recent proceedings involving DBS further demonstrate that DBS providers impose regulatory costs and receive benefit from the activities of the Media Bureau FTEs that affect all MVPDs. In the FY 2016 NPRM, we sought comment on a higher regulatory fee rate of 27 cents per subscriber per year for FY 2016—a 24 cent per subscriber baseline with a proportional adjustment of three cents per subscriber associated with facilities reduction costs.97 This fee would be slightly higher than two cents per month per subscriber and would remain significantly below the cable television/IPTV rate of $1.00 per year.98

    95Expansion of Online Public File Obligations to Cable and Satellite TV Operators and Broadcast and Satellite Radio Licensees, Report and Order, 31 FCC Rcd 526 (2016).

    96Expanding Consumers' Video Navigation Choices, Commercial Availability of Navigation Devices, Notice of Proposed Rulemaking and Memorandum Opinion and Order, 31 FCC Rcd 1544 (2016). See also Promoting the Availability of Diverse and Independent Sources of Video Programming, Notice of Inquiry, 31 FCC Rcd 1610 (2016).

    97 For FY 2015, we adopted a rate for DBS of 12 cents per subscriber per year, or one cent per month per subscriber. By way of comparison, the cable television and IPTV rate adopted for FY 2015 was 96 cents per subscriber per year.

    98 The agency is not required to calculate its costs with “scientific precision.” Central & Southern Motor Freight Tariff Ass'n v. United States, 777 F.2d 722, 736 (D.C. Cir. 1985). Reasonable approximations will suffice. Id.; Mississippi Power & Light, 601 F.2d at 232; National Cable Television Ass'n v. FCC, 554 F.2d 1094, 1105 (D.C. Cir. 1976); 36 Comp. Gen. 75 (1956).

    30. Commenters representing the cable television industry agree that the Media Bureau FTEs increasingly devote time to issues involving the entire MVPD industry, and that DBS, cable television, and IPTV all receive oversight and regulation as a result of the work of the Media Bureau FTEs on MVPD issues.99 These commenters argue that regulatory fee parity for all MVPDs paying into the cable television/IPTV fee category is therefore justified because there is a “relatively small difference from a regulatory perspective” between DBS and cable television/IPTV.100 ACA observes 101 that AT&T, the nation's largest MVPD,102 operates its U-verse IPTV service and its DirecTV DBS service,103 yet will be assessed lower regulatory fees for its approximately 20 million DirecTV subscribers than it will pay for its approximately six million IPTV subscribers, although these services use comparable Media Bureau FTE resources.104

    99 ACA Comments at 3-11; NCTA Reply Comments at 3-7.

    100 ACA Comments at 3-7; NCTA Reply Comments at 7.

    101 ACA Comments at 9.

    102 When the Commission sought comment on including IPTV into the cable television fee category, AT&T, an IPTV service provider, advocated a “broader MVPD category . . . because it could encompass both cable service and non-cable service video offerings, like IPTV, and allow for evolution in the MVPD market.” AT&T Comments (MD Docket No. 13-140) at 5.

    103Applications of AT&T Inc. and DirecTV; For Consent to Assign or Transfer Control of Licenses and Authorizations, Memorandum Opinion and Order, 30 FCC Rcd 9131 (2016).

    104See, e.g., Implementation of Section 103 of the STELA Reauthorization Act of 2014, MB Docket Nos. 15-216 and 10-71, Ex Parte Letter to Marlene Dortch, Secretary, FCC, from Sean A. Lev, Counsel to AT&T Services, Inc. (filed March 16, 2016). Moreover, recent press reports indicate that AT&T's U-verse subscribers are declining, while their DirecTV subscribers are increasing, which will lower its Media Bureau regulatory fee burden. See http://variety.com/2016/biz/news/directv-att-tv-shrinks-q2-2016-1201819654/; http://www.hollywoodreporter.com/news/at-t-loses-pay-tv-913277.

    31. ACA agrees that the previously adopted phase-in period was the correct approach; however, DBS providers have already had the benefit of an adequate phase-in and should now be brought quickly up to parity with cable television and IPTV.105 Thus, ACA and NCTA argue, the Commission should either assess all payors in the cable television/IPTV fee category the same level of fees, or, at a minimum, assess DBS fee payors a higher fee and commit to raising that by 2017 to the fees assessed on cable television operators and IPTV providers.106

    105 ACA Comments at 9-11 & Reply Comments at 15.

    106 ACA Comments at 9-11; NCTA Reply Comments at 9.

    32. The two DBS providers, AT&T and DISH, however, disagree with our proposal and argue that there is no justification for increasing the fee to 27 cents per subscriber per year for FY 2016.107 AT&T contends that we have failed to demonstrate any specific reason for this fee increase for DBS providers.108 DISH argues that the increase of an additional 15 cents per subscriber per year will subject DBS providers to “rate shock” and that we have abandoned our “phased approach.” 109 We disagree that this rate increase, still substantially below the cable television/IPTV rate, will cause “rate shock.” As NTCA observes, it is unpersuasive that rate shock will occur under “a 27 cents annual fee for services that cost on average about $100 per month.” 110

    107 AT&T Comments at 1-3; DISH Comments at 4-6 & Reply Comments at 2-3.

    108 AT&T Comments at 1-3.

    109 DISH Comments at 7-8.

    110 NTCA Reply Comments at 2-3 (footnote omitted); ACA Reply Comments at 2 (“claims . . . that the Commission's proposed increase will cause `rate shock' . . . should not be given any credence.”). The two DBS providers, AT&T and DISH, are the largest and fourth largest MVPDs in the nation, and multi-billion dollar corporations. Id. at 14.

    33. The proposed fee of 27 cents per subscriber per year continues to follow our decision to assess fees for DBS in the cable television/IPTV category. In particular, the increase we adopt today is not based on an incremental increase in Media Bureau FTEs working on MVPD issues,111 but is supported by data and analysis and wholly consistent with the approach used in FY 2015.112 We reiterate that the DBS and cable television/IPTV oversight and regulatory work of Media Bureau FTEs is similar.113 As such, we remain committed as a goal to regulatory fee parity for all MVPDs paying into the cable television/IPTV fee category.114 We find it appropriate to adopt the rate proposed in the FY 2016 NPRM. 115 For reasons similar to those discussed in the FY 2015 NPRM, 116 and based on our analysis of the resources dedicated to this subcategory, including the resources dedicated to the pending portfolio of MVPD proceedings, we revise the DBS fee rate. Specifically, in this FY 2016 regulatory fee proceeding, we adopt a DBS fee rate of 27 cents per subscriber per year for FY 2016, as set forth in the fee schedule. This fee includes a 24 cent per subscriber baseline with a proportional adjustment of three cents per subscriber associated with facilities reduction costs.

    111 This appears to be the DBS position. See AT&T Comments at 2; DISH Comments at 6 & Reply Comments at 3.

    112See FY 2015 Report and Order, 30 FCC Rcd at 10277, paragraph 20 (finding that the initial rate of 12 cents per subscriber per year is a “sensible fee supported by data and analysis.”)

    113FY 2016 NPRM, 81 FRt 35680, at 35683, paragraphs 13-14.; FY 2015 NPRM, 30 FCC Rcd at 5369, paragraph 33.

    114See FY 2015 Report and Order, 30 FCC Rcd at 10277, paragraph 20 (“In the FY 2016 regulatory fee proceeding, we will update this rate for future years, based on relevant information, as necessary for ensuring an appropriate level of regulatory parity and considering the resources dedicated to this new regulatory fee subcategory.”).

    115FY 2016 NPRM, 81 FR 35680, at 35683 at paragraph 14.

    116FY 2015 NPRM, 30 FCC Rcd at 5367-5373, paragraphs 31-41.

    6. Broadcasters' Fees a. AM and FM Broadcasters Serving the Smallest Two Market Levels (<=25,000 and 25,001-75,000)

    34. In the FY 2016 NPRM, we proposed to include a higher population row in the table for AM and FM broadcasters, i.e., to divide broadcasters that serve 3,000,001-6,000,000 from those that have a higher population coverage.117 Similarly, we proposed to standardize the incremental increase in fees as the population served increases,118 and to more consistently assess fees based on the type and class of service.119 We also proposed to adjust the television broadcasters table so that Top 10 market stations should pay about twice what stations in markets 26-50 pay.120

    117FY 2016 NPRM, 81 FR 35680, at 35684, paragraph 17. We also sought comment on this issue in the Further Notice of Proposed Rulemaking attached to the FY 2015 Report and Order. See FY 2015 Report and Order, 30 FCC Rcd at 10280, paragraph 28.

    118Id. Specifically, we sought comment on standardizing the incremental increase in fees as radio broadcasters increase the population they serve, such as by requiring that fee adjustments between tiers monotonically increase as the population served increases. Id.

    119Id. We sought comment on assessing fees based on the relative type and class of service, such as by assessing FM class B, C, C0, C1, & C2 stations at twice the rate of AM class C stations, and FM class A, B1, & C3 stations assessed at 75 percent more than AM class C stations. For AM stations, we sought comment on assessing AM class A stations at 60 percent more, AM class B stations at 15 percent more, and AM class D stations at 10 percent more than AM class C stations. Id.

    120FY 2016 NPRM, 81 FR 35680, at 35685, paragraph 19. We also sought comment on this issue in the Further Notice of Proposed Rulemaking attached to the FY 2015 Report and Order. See FY 2015 Report and Order, 30 FCC Rcd at 10280-81, paragraph 29.

    35. Several commenters contend that our proposal is too burdensome for small independent radio and television stations.121 One commenter contends that the addition of “greater than 6 million” is a welcome step for radio broadcasters, but that it does not go far enough because AM stations bill far less advertising revenue than FM stations.122 Another commenter, representing a group of recording artists, observes that “the [radio] stations that support us the most are the smaller independents not affiliated with the major networks. These smaller stations struggle on a day-to-day basis.” 123 Several commenters suggest that we use a combination of revenue and a set fee instead of a market-based fee, to assess regulatory fees for radio and television broadcasters.124

    121 Marquee Broadcasting Comments at 1 (“[The proposal] places a disproportional burden on small, independent broadcast [television] stations, the very group the FCC should hope to encourage in an industry of giants.”); Koor Communications Reply Comments at 1 (“The present system of calculating regulatory fees is very lopsided and unfair especially to small market AM Broadcasters.”); P & M Radio Reply Comments at 1 (“I, along with many owner-operators of independent AM stations, have been struggling in the past decade just to stay on the air.”); Blackbelt Broadcasting Comments at 1 (“the proposed fee increase (and structure) [should be] revaluated [to] consider the burden this will put on many small rural [FM] broadcasters.”); Fitzgerald Comments at 2 (“Stations with populations under 25,000 served are for the most part, very small `Mom and Pop' style stations. These [proposed] massive increases will greatly harm these . . . [radio] stations which generate very small amounts of revenue.”); Faxon Reply Comments at 1 (“The proposed regulatory fees for 2016 do not make sense and place an extreme burden on small market radio stations.”).

    122 Bittner Comments at 1.

    123 Brigham Reply Comments at 1.

    124 Bittner Broadcasting Comments at 1-3; Marquee Broadcasting Comments at 1; Brigham Reply Comments at 1; Koor Communications Reply Comments at 1; P & M Radio Reply Comments at 1; Faxon Reply Comments at 1.

    36. We do not require broadcasters to report their revenues. Thus, the revenue-based proposal is not practicable at this time. We agree, however, that the proposed rates should be revised downward for the smaller AM and FM radio broadcast stations. Extending some relief to these small radio broadcasters may facilitate their continued ability to stay in business and serve their small and rural communities. Therefore, after reviewing the record, including the comments filed by the industry describing the economic hardship faced by many small rural independent radio stations, we are adopting a revised version of the proposed table in the FY 2016 NPRM and reducing the regulatory fees in the two lowest population tiers for AM and FM broadcasters from the amounts proposed.125

    125 PMCM TV suggests that we assess a lower fee for VHF TV stations than UHF stations. PMCM TV Comments at 3-4. We decline to adopt this proposal here, but intend to seek comment on it in the FY 2017 Notice of Proposed Rulemaking.

    Table 1—FY 2016 AM and FM Radio Station Regulatory Fees Population served AM Class A AM Class B AM Class C AM Class D FM Classes
  • A, B1 & C3
  • FM Classes
  • B, C, C0, C1 & C2
  • <=25,000 $990 $715 $620 $685 $1,075 $1,250 25,001-75,000 1,475 1,075 925 1,025 1,625 1,850 75,001-150,000 2,200 1,600 1,375 1,525 2,400 2,750 150,001-500,000 3,300 2,375 2,075 2,275 3,600 4,125 500,001-1,200,000 5,500 3,975 3,450 3,800 6,000 6,875 1,200,001-3,000,00 8,250 5,950 5,175 5,700 9,000 10,300 3,000,001-6,000,00 11,000 7,950 6,900 7,600 12,000 13,750 >6,000,000 13,750 9,950 8,625 9,500 15,000 17,175
    b. Puerto Rico Broadcasters Association Proposal

    37. The PRBA and Arso comment on the issues set forth in the PRBA December 10, 2014 letter (PRBA Letter),126 seeking regulatory fee relief for the radio broadcasters in the Commonwealth of Puerto Rico due to economic hardship, unique geography, and declining population.127 In the PRBA Letter, PRBA requested that the Commission use more recent figures to determine the radio station population count for radio stations in Puerto Rico.128 PRBA stated that due to the economic hardship in the territory, the population has decreased in the past nine years by almost six percent because of migration to the mainland United States and a declining birthrate.129 Finally, PRBA contended that the radio listening market is limited because it is restricted to listeners within the boundaries of the island.130

    126 PRBA Comments at 1-5; Arso Comments at 1-7.

    127 We previously sought comment on: (i) Moving the Puerto Rico market stations to a different rate (or a lower population stratum) because of the downward trend in the population and other factors; (ii) creating a separate fee category for the Puerto Rico market at a lower rate; or (iii) adopting a special provision in our rules for economically depressed geographic areas to seek a “fast track” waiver of regulatory fees. See FY 2015 NPRM, 30 FCC Rcd at 5360-61, paragraphs 15-18. Arso observes that the “fast track” proposal would require a rulemaking procedure, which would be time-consuming, and the Puerto Rican stations need immediate relief. Arso Comments at 4.

    128 PRBA Letter at 2-4. PRBA asked the Commission to examine population data every five years instead of every 10 years to increase the accuracy of the population counts in Puerto Rico. The Commission explained that radio station population counts are updated every ten years to reflect nationwide changes in the population using the “block level census data” from the U.S. Census, therefore we could not adopt PRBA's suggestion because the “block level census data” is only available from the U.S. Census Bureau every 10 years. Further, even if such figures were available every five years, they would be unlikely to provide a basis for fee relief for radio stations in Puerto Rico because fees on AM and FM radio stations are not assessed at granular levels. See FY 2015 NPRM, 30 FCC Rcd at 5360-61, paragraphs 15-18.

    129 PRBA Letter at 3.

    130Id. at 5.

    38. PRBA and Arso contend that the economic situation has worsened since the PRBA Letter was filed, and that it is crucial that the Commission provide relief from regulatory fee obligations for Puerto Rican broadcasters.131 PRBA contends that requiring each radio and television station to submit a waiver request would negate any benefit of the Commission's efforts.132 Arso observes that it would be burdensome for companies to pay the regulatory fee when requesting a fee reduction.133 Instead, PRBA contends, the Commission should either move the Puerto Rican stations to a lower population stratum 134 or create a separate fee category for the Puerto Rican market.135 PRBA urges the Commission to adopt the second proposal—a separate fee category for the entire Puerto Rican market—at a rate 30 percent lower than the normal rate for each station.136

    131 PRBA Comments at 2; Arso Comments at 3.

    132 PRBA Comments at 3. Arso Comments at

    133 Arso Comments at 3-4.

    134 PRBA suggests moving two levels down to account for population loss and economic difficulties. PRBA Comments at 4.

    135 PRBA Comments at 3-4. Arso Comments at

    136 PRBA Comments at 4. Arso Comments at

    39. We decline to adopt the PRBA proposal at this time. Fee relief is ordinarily processed through a waiver request or payment deferral.137 While we recognize that the economic situation in Puerto Rico is difficult in general, without the specific information needed to justify a waiver request or payment deferral we would not know the particular circumstances of the regulatee or licensee to support a request for relief. Information concerning how to request fee relief can be found on our Web site, e.g., https://www.fcc.gov/document/fy-2015-waiver-regulatory-fees-fact-sheet. As discussed above, we are adopting a revised version of the proposed table and thus reducing the regulatory fees in the two lowest population tiers from the amount proposed for radio broadcasters, which should provide some amount of fee relief to eleven of the PRBA stations.138

    137 Fees may be waived, reduced or deferred in specific instances, on a case-by-case basis, where good cause is shown and where waiver, reduction, or deferral of the fee would promote the public interest. 47 U.S.C. 159(d); 47 CFR 1.1166. Fee relief may be granted based on a “sufficient showing of financial hardship.” See Implementation of Section 9 of the Communications Act, Assessment and Collection of Regulatory Fees for the 1994 Fiscal Year, Memorandum Opinion and Order, 10 FCC Rcd 12759, 12761-62, paragraph 13 (1995). In such matters, however, “[m]ere allegations or documentation of financial loss, standing alone,” do not suffice and “it [is] incumbent upon each regulatee to fully document its financial position and show that it lacks sufficient funds to pay the regulatory fee and to maintain its service to the public.” Id.

    138 The remaining radio stations in Puerto Rico are situated in the top three fee category tiers. In addition to providing relief to eleven Puerto Rican radio stations, a reduction in the fees of the two lowest fee categories also provides relief to many small non-Puerto Rican stations, including several dozen radio stations in the U.S. territories in the Pacific and in the Caribbean (e.g., Guam, American Samoa, Saipan, and U.S. Virgin Islands).

    c. Broadcast Television Incentive Auction—Reminder To Pay FY 2016 and FY 2017 Regulatory Fees

    40. The Commission's Broadcast Television Incentive Auction (Incentive Auction) is underway, and all broadcast television licensees are reminded that they continue to be responsible for payment of FY 2016 regulatory fees if they held a license or construction permit as of October 1, 2015, as well as for payment of FY 2017 regulatory fees if they continue to hold their license or construction permit as of October 1, 2016. Licensees must pay the required regulatory fees to avoid any delay of payments resulting from the Incentive Auction.139 Finally, regulatees are reminded that non-payment of regulatory fees, if required, will place them in red light status and prevent them from conducting business with the Commission.

    139Application Procedures for Broadcast Incentive Auction Scheduled to Begin on March 29, 2016; Technical Formulas for Competitive Bidding, Public Notice, 30 FCC Rcd 11034, 11041-42, paragraphs 12-14 (WTB 2015); see also Expanding the Economic and Innovation Opportunities of Spectrum Though Incentive Auctions, Report and Order, 29 FCC Rcd at 6567, 6785, n.1512 (2014).

    V. Procedural Matters A. Payment of Regulatory Fees 1. Payments by Check Will Not Be Accepted for Payment of Annual Regulatory Fees

    41. Pursuant to an Office of Management and Budget (OMB) directive,140 the Commission is moving towards a paperless environment, extending to disbursement and collection of select federal government payments and receipts.141 The initiative to reduce paper and curtail check payments for regulatory fees is expected to produce cost savings, reduce errors, and improve efficiencies across government. In FY 2015, we stopped accepting checks (including cashier's checks and money orders) and the accompanying hardcopy forms (e.g., Forms 159, 159-B, 159-E, 159-W) for the payment of regulatory fees.142 The paperless procedure requires that all payments be made by online Automated Clearing House (ACH) payment, online credit card, or wire transfer. Any other form of payment (e.g., checks, cashier's checks, or money orders) will be rejected. For payments by wire, a Form 159-E should still be transmitted via fax in order to associate the wire payment with the correct regulatory fee information.143

    140 Office of Management and Budget (OMB) Memorandum M-10-06, Open Government Directive, Dec. 8, 2009; see also http://www.whitehouse.gov/the-press-office/2011/06/13/executive-order-13576-delivering-efficient-effective-and-accountable-gov.

    141See U.S. Department of the Treasury, Open Government Plan 2.1, Sept. 2012.

    142FY 2015 Report and Order, 30 FCC Rcd at 10282-83, paragraph 35.

    143 As we explained in 2015, payors should note that to the extent certain entities have to date paid both regulatory fees and application fees at the same time via paper check, they will no longer be able to do so as the regulatory fees payment via paper check will no longer be accepted.

    2. Revised Credit Card Transaction Levels

    42. Since June 1, 2015, in accordance with U.S. Treasury Announcement No. A-2014-04 (July 2014), the amount that can be charged on a credit card for transactions with federal agencies has been limited to $24,999.99.144 Transactions greater than $24,999.99 will be rejected. This limit applies to single payments or bundled payments of more than one bill. Multiple transactions to a single agency in one day may be aggregated and treated as a single transaction subject to the $24,999.99 limit. Customers who wish to pay an amount greater than $24,999.99 should consider available electronic alternatives such as Visa or MasterCard debit cards, ACH debits from a bank account, and wire transfers. Each of these payment options is available after filing regulatory fee information in Fee Filer. Further details will be provided regarding payment methods and procedures at the time of FY 2016 regulatory fee collection in Fact Sheets, available at https://www.fcc.gov/regfees.

    144 Customers who owe an amount on a bill, debt, or other obligation due to the federal government are prohibited from splitting the total amount due into multiple payments. Splitting an amount owed into several payment transactions violates the credit card network and Fiscal Service rules. An amount owed that exceeds the Fiscal Service maximum dollar amount, $24,999.99, may not be split into two or more payment transactions in the same day by using one or multiple cards. Also, an amount owed that exceeds the Fiscal Service maximum dollar amount may not be split into two or more transactions over multiple days by using one or more cards.

    3. Payment Methods

    43. During the fee season for collecting FY 2016 regulatory fees, regulatees can pay their fees by credit card through Pay.gov,145 ACH, debit card,146 or by wire transfer. Additional payment instructions are posted at http://transition.fcc.gov/fees/regfees.html. The receiving bank for all wire payments is the U.S. Treasury, New York, New York. When making a wire transfer, regulatees must fax a copy of their Fee Filer generated Form 159-E to the Federal Communications Commission at (202) 418-2843 at least one hour before initiating the wire transfer (but on the same business day) so as not to delay crediting their account. Regulatees should discuss arrangements (including bank closing schedules) with their bankers several days before they plan to make the wire transfer to allow sufficient time for the transfer to be initiated and completed before the deadline. Complete instructions for making wire payments are posted at http://ransition.fcc.gov/fees/wiretran.html.

    145 In accordance with U.S. Treasury Financial Manual Announcement No. A-2014-04 (July 2014), the amount that may be charged on a credit card for transactions with federal agencies has been reduced to $24,999.99.

    146 In accordance with U.S. Treasury Financial Manual Announcement No. A-2012-02, the maximum dollar-value limit for debit card transactions is eliminated. Only Visa and MasterCard branded debit cards are accepted by Pay.gov.

    4. De Minimis Regulatory Fees

    44. Regulatees whose total FY 2016 annual regulatory fee liability, including all categories of fees for which payment is due, is $500 or less are exempt from payment of FY 2015 regulatory fees. The de minimis threshold applies only to filers of annual regulatory fees (not regulatory fees paid through multi-year filings), and is not a permanent exemption. Regulatees will need to reevaluate their total fee liability each fiscal year to determine whether they meet the de minimis exemption.

    5. Standard Fee Calculations and Payment Dates

    45. The Commission will accept fee payments made in advance of the window for the payment of regulatory fees. The responsibility for payment of fees by service category is as follows:

    Media Services: Regulatory fees must be paid for initial construction permits that were granted on or before October 1, 2015 for AM/FM radio stations, VHF/UHF full service television stations, and satellite television stations. Regulatory fees must be paid for all broadcast facility licenses granted on or before October 1, 2015. For providers of DBS service, regulatory fees should be paid based on a subscriber count on or about December 31, 2015. In instances where a permit or license is transferred or assigned after October 1, 2015, responsibility for payment rests with the holder of the permit or license as of the fee due date.

    Wireline (Common Carrier) Services: Regulatory fees must be paid for authorizations that were granted on or before October 1, 2015. In instances where a permit or license is transferred or assigned after October 1, 2015, responsibility for payment rests with the holder of the permit or license as of the fee due date. Audio bridging service providers are included in this category.147 For RespOrgs that manage Toll Free Numbers (TFN), regulatory fees should be paid on all working, assigned, and reserved toll free numbers, including those toll free numbers that are in transit status, or any other status as defined in section 52.103 of the Commission's rules. The unit count should be based on toll free numbers managed by RespOrgs on or about December 31, 2015.

    147 Audio bridging services are toll teleconferencing services.

    Wireless Services: CMRS cellular, mobile, and messaging services (fees based on number of subscribers or telephone number count): Regulatory fees must be paid for authorizations that were granted on or before October 1, 2015. The number of subscribers, units, or telephone numbers on December 31, 2015 will be used as the basis from which to calculate the fee payment. In instances where a permit or license is transferred or assigned after October 1, 2015, responsibility for payment rests with the holder of the permit or license as of the fee due date.

    Wireless Services, Multi-year fees: The first eight regulatory fee categories in our Schedule of Regulatory Fees pay “small multi-year wireless regulatory fees.” Entities pay these regulatory fees in advance for the entire amount period covered by the five-year or ten-year terms of their initial licenses, and pay regulatory fees again only when the license is renewed or a new license is obtained. We include these fee categories in our rulemaking (see Table 3) to publicize our estimates of the number of “small multi-year wireless” licenses that will be renewed or newly obtained in FY 2016.

    Multichannel Video Programming Distributor Services (cable television operators and CARS licensees): Regulatory fees must be paid for the number of basic cable television subscribers as of December 31, 2015.148 Regulatory fees also must be paid for CARS licenses that were granted on or before October 1, 2015. In instances where a permit or license is transferred or assigned after October 1, 2015, responsibility for payment rests with the holder of the permit or license as of the fee due date.

    148 Cable television system operators should compute their number of basic subscribers as follows: Number of single family dwellings + number of individual households in multiple dwelling unit (apartments, condominiums, mobile home parks, etc.) paying at the basic subscriber rate + bulk rate customers + courtesy and free service. Note: Bulk-Rate Customers = Total annual bulk-rate charge divided by basic annual subscription rate for individual households. Operators may base their count on “a typical day in the last full week” of December 2015, rather than on a count as of December 31, 2015.

    International Services: Regulatory fees must be paid for (1) earth stations and (2) geostationary orbit space stations and non-geostationary orbit satellite systems that were licensed and operational on or before October 1, 2015. In instances where a permit or license is transferred or assigned after October 1, 2015, responsibility for payment rests with the holder of the permit or license as of the fee due date.

    International Services: (Submarine Cable Systems): Regulatory fees for submarine cable systems are to be paid on a per cable landing license basis based on circuit capacity as of December 31, 2015. In instances where a license is transferred or assigned after October 1, 2015, responsibility for payment rests with the holder of the license as of the fee due date. For regulatory fee purposes, the allocation in FY 2016 will remain at 87.6 percent for submarine cable and 12.4 percent for satellite/terrestrial facilities.

    International Services: (Terrestrial and Satellite Services): Regulatory fees for Terrestrial and Satellite International Bearer Circuits are to be paid by facilities-based common carriers that have active (used or leased) international bearer circuits as of December 31, 2015 in any terrestrial or satellite transmission facility for the provision of service to an end user or resale carrier. When calculating the number of such active circuits, the facilities-based common carriers must include circuits used by themselves or their affiliates. In addition, non-common carrier satellite operators must pay a fee for each circuit they and their affiliates hold and each circuit sold or leased to any customer, other than an international common carrier authorized by the Commission to provide U.S. international common carrier services. For these purposes, “active circuits” include backup and redundant circuits as of December 31, 2015. Whether circuits are used specifically for voice or data is not relevant for purposes of determining that they are active circuits.149 In instances where a permit or license is transferred or assigned after October 1, 2015, responsibility for payment rests with the holder of the permit or license as of the fee due date. For regulatory fee purposes, the allocation in FY 2016 will remain at 87.6 percent for submarine cable and 12.4 percent for satellite/terrestrial facilities.150

    149 We encourage terrestrial and satellite service providers to seek guidance from the International Bureau's Policy Division to verify their IBC reporting processes to ensure that their calculation methods comply with our rules.

    150 We remind facilities-based common carriers to review their reporting processes to ensure that they accurately calculate and report IBCs.

    B. Commercial Mobile Radio Service (CMRS) Cellular and Mobile Services Assessments

    46. The Commission will compile data from the Numbering Resource Utilization Forecast (NRUF) report that is based on “assigned” telephone number (subscriber) counts that have been adjusted for porting to net Type 0 ports (“in” and “out”).151 This information of telephone numbers (subscriber count) will be posted on the Commission's electronic filing and payment system (Fee Filer) along with the carrier's Operating Company Numbers (OCNs).

    151See FY 2005 Report and Order, 20 FCC Rcd at 12264, paragraphs 38-44.

    47. A carrier wishing to revise its telephone number (subscriber) count can do so by accessing Fee Filer and follow the prompts to revise their telephone number counts. Any revisions to the telephone number counts should be accompanied by an explanation or supporting documentation.152 The Commission will then review the revised count and supporting documentation and either approve or disapprove the submission in Fee Filer. If the submission is disapproved, the Commission will contact the provider to afford the provider an opportunity to discuss its revised subscriber count and/or provide additional supporting documentation. If we receive no response from the provider, or we do not reverse our initial disapproval of the provider's revised count submission, the fee payment must be based on the number of subscribers listed initially in Fee Filer. Once the timeframe for revision has passed, the telephone number counts are final and are the basis upon which CMRS regulatory fees are to be paid. Providers can view their final telephone counts online in Fee Filer. A final CMRS assessment letter will not be mailed out.

    152 In the supporting documentation, the provider will need to state a reason for the change, such as a purchase or sale of a subsidiary, the date of the transaction, and any other pertinent information that will help to justify a reason for the change.

    48. Because some carriers do not file the NRUF report, they may not see their telephone number counts in Fee Filer. In these instances, the carriers should compute their fee payment using the standard methodology that is currently in place for CMRS Wireless services (i.e., compute their telephone number counts as of December 31, 2015), and submit their fee payment accordingly. Whether a carrier reviews its telephone number counts in Fee Filer or not, the Commission reserves the right to audit the number of telephone numbers for which regulatory fees are paid. In the event that the Commission determines that the number of telephone numbers that are paid is inaccurate, the Commission will bill the carrier for the difference between what was paid and what should have been paid.

    C. Enforcement

    49. To be considered timely, regulatory fee payments must be made electronically by the payment due date for regulatory fees. Section 9(c) of the Act requires us to impose a late payment penalty of 25 percent of the unpaid amount to be assessed on the first day following the deadline for filing these fees.153 Failure to pay regulatory fees and/or any late penalty will subject regulatees to sanctions, including those set forth in section 1.1910 of the Commission's rules,154 which generally requires the Commission to withhold action on “applications, including on a petition for reconsideration or any application for review of a fee determination, or requests for authorization by any entity found to be delinquent in its debt to the Commission” and in the DCIA.155 We also assess administrative processing charges on delinquent debts to recover additional costs incurred in processing and handling the debt pursuant to the DCIA and section 1.1940(d) of the Commission's rules.156 These administrative processing charges will be assessed on any delinquent regulatory fee, in addition to the 25 percent late charge penalty. In the case of partial payments (underpayments) of regulatory fees, the payor will be given credit for the amount paid, but if it is later determined that the fee paid is incorrect or not timely paid, then the 25 percent late charge penalty (and other charges and/or sanctions, as appropriate) will be assessed on the portion that is not paid in a timely manner.

    153 47 U.S.C. 159(c).

    154See 47 CFR 1.1910.

    155 Delinquent debt owed to the Commission triggers the “red light rule,” which places a hold on the processing of pending applications, fee offsets, and pending disbursement payments. 47 CFR 1.1910, 1.1911, 1.1912. In 2004, the Commission adopted rules implementing the requirements of the DCIA. See Amendment of Parts 0 and 1 of the Commission's Rules, MD Docket No. 02-339, Report and Order, 19 FCC Rcd 6540 (2004); 47 CFR part 1, subpart O, Collection of Claims Owed the United States.

    156 47 CFR 1.1940(d).

    50. Pursuant to the “red light rule,” we will withhold action on any applications or other requests for benefits filed by anyone who is delinquent in any non-tax debts owed to the Commission (including regulatory fees) and will ultimately dismiss those applications or other requests if payment of the delinquent debt or other satisfactory arrangement for payment is not made.157 Failure to pay regulatory fees can also result in the initiation of a proceeding to revoke any and all authorizations held by the entity responsible for paying the delinquent fee(s).158 Pursuant to a pilot program, we have initiated procedures to transfer debt to the Centralized Receivables Service at the U.S. Treasury, as described below.

    157See 47 CFR 1.1161(c), 1.1164(f)(5), and 1.1910.

    158 47 U.S.C. 159.

    D. Transfers of Unpaid Debt to Centralized Receivables Service (CRS), U.S. Treasury

    51. Under section 9 of the Act, Commission rules, and federal debt collection laws, a licensee's regulatory fee is due on the first day of the fiscal year and payable at a date established in the Commission's annual regulatory fee Report and Order. In October 2015, the Commission, under revised procedures, began transferring unpaid regulatory fee receivables directly to the CRS at the U.S. Treasury rather than trying to collect the debt itself and then transferring the remaining unpaid debts to Treasury. Under revised procedures, the Commission can transfer delinquent debt to Treasury for further collection action within 120 days after the date of delinquency.159 However, regulatees will not likely see any substantial change in the current procedures of how past due debts are to be paid, except that the debts will be handled by CRS (U.S. Treasury) rather than by the Commission.

    159See 31 U.S.C. 3711(g); 31 CFR 285.12; 47 CFR 1.1917.

    E. Effective Date

    52. Providing a 30 day period after Federal Register publication before this Report and Order becomes effective as required by 5 U.S.C. 553(d) will not allow sufficient time to collect the FY 2016 fees before FY 2016 ends on September 30, 2016. For this reason, pursuant to 5 U.S.C. 553(d)(3), we find there is good cause to waive the requirements of section 553(d), and this Report and Order will become effective upon publication in the Federal Register. Because payments of the regulatory fees will not actually be due until late September, persons affected by this Report and Order will still have a reasonable period in which to make their payments and thereby comply with the rules established herein.

    VI. Additional Tables Table 2—List of Commenters—Initial Comments Commenter Abbreviation American Cable Association ACA. Arso Radio Corporation Arso. AT&T Services, Inc. AT&T. Robert Bittner, Bob Bittner Broadcasting Co. Bittner Broadcasting. CTIA CTIA. CenturyLink, Inc. CenturyLink. Damon Collins, Blackbelt Broadcasting, Inc. Blackbelt Broadcasting. DISH Network, L.L.C. DISH. EchoStar Satellite Operating Corporation and Hughes Network Systems, LLC EchoStar. Kevin M. Fitzgerald Fitzgerald. Frontier Communications Corporation Frontier. Patricia Lane, Marquee Broadcasting Marquee Broadcasting. Level 3 Communications, LLC Level 3. NTCA—The Rural Broadband Association NTCA. Puerto Rico Broadcasters Association PRBA. Somos, Inc. Somos. Submarine Cable Coalition Submarine Cable Coalition. List of Commenters—Reply Comments American Cable Association ACA. Adrian Brigham Brigham. CTIA CTIA. DISH Network, L.L.C. DISH. Shawn Faxon Faxon. Robert L. Vinikoor, Koor Communications, Inc. Koor Communications. National Cable & Telecommunications Association NCTA. NTCA—The Rural Broadband Association NTCA. Phillip G. Drumheller, President, P & M Radio, LLC. P & M Radio. PMCM TV, LLC PMCM TV. Table 3—Calculation of FY 2016 Revenue Requirements and Pro-Rata Fees [Regulatory fees for the first seven fee categories below are collected by the Commission in advance to cover the term of the license and are submitted at the time the application is filed] Fee Category FY 2016
  • payment units
  • Years FY 2015
  • revenue
  • estimate
  • Pro-rated FY 2016 revenue requirement Computed FY 2016 reg. fee Rounded
  • FY 2016
  • reg. fee
  • Expected
  • FY 2016
  • revenue
  • PLMRS (Exclusive Use) 2,500 10 546,000 625,000 25 25 625,000 PLMRS (Shared use) (includes Rural Radio Service (47 CFR part 22) 31,100 10 3,100,000 3,110,000 10 10 3,110,000 Microwave 12,500 10 2,520,000 3,125,000 25 25 3,125,000 Marine (Ship) 6,900 10 945,000 1,035,000 15 15 1,035,000 Aviation (Aircraft) 4,700 10 420,000 470,000 10 10 470,000 Marine (Coast) 480 10 171,500 192,000 40 40 192,000 Aviation (Ground) 1,100 10 180,000 220,000 20 20 220,000 AM Class A 4 66 1 281,125 313,996 4,758 4,750 313,500 AM Class B 4 1,535 1 3,499,125 3,888,014 2,533 2,525 3,875,875 AM Class C 4 889 1 1,244,600 1,407,418 1,583 1,575 1,400,175 AM Class D 4 1,492 1 4,103,000 4,601,097 3,084 3,075 4,587,900 FM Classes A, B1 & C3 4 3,122 1 8,613,000 9,649,637 3,091 3,100 9,678,200 FM Classes B, C, C0, C1 & C2 4 3,139 1 10,607,625 11,820,313 3,766 3,775 11,849,725 AM Construction Permits 1 15 1 17,110 9,300 620 620 9,300 FM Construction Permits 1 179 1 136,500 192,425 1,075 1,075 192,425 Satellite TV 128 1 200,025 224,000 1,750 1,750 224,000 Digital TV Markets 1-10 139 1 6,274,550 8,433,889 60,675 60,675 8,433,825 Digital TV Markets 11-25 139 1 5,918,400 6,348,889 45,675 45,675 6,348,825 Digital TV Markets 26-50 181 1 5,000,125 5,523,889 30,519 30,525 5,525,025 Digital TV Markets 51-100 283 1 4,605,825 4,304,746 15,211 15,200 4,301,600 Digital TV Remaining Markets 365 1 1,838,150 1,825,000 5,000 5,000 1,825,000 Digital TV Construction Permits 1 3 1 9,700 15,000 5,000 5,000 15,000 LPTV/Translators/Boosters/Class A TV 3,924 1 1,601,600 1,785,420 455 455 1,785,420 CARS Stations 285 1 198,000 220,875 775 775 220,875 Cable TV Systems, including IPTV 64,200,000 1 61,920,000 64,200,000 1.000 1.00 64,200,000 Direct Broadcast Satellite (DBS) 34,000,000 1 4,080,000 9,180,000 .2700 .27 9,180,000 Interstate Telecommunication Service Providers 38,200,000,000 1 128,428,000 141,722,000 0.003710 0.00371 142,722,000 Toll Free Numbers 36,500,000 1 4,380,000 4,745,000 0.1300 0.13 4,745,000 CMRS Mobile Services (Cellular/Public Mobile) 366,000,000 1 60,180,000 73,200,000 0.1954 0.20 73,200,000 CMRS Messag. Services 2,300,000 1 208,000 184,000 0.0800 0.080 184,000 BRS 2 890 1 565,150 645,250 725 725 645,250 LMDS 395 1 238,125 286,375 725 725 286,375 Per 64 kbps Int'l Bearer Circuits Terrestrial (Common) & Satellite (Common & Non-Common) 31,900,000 1 657,000 776,617 .0243 .02 638,000 Submarine Cable Providers (see chart in Appendix B) 3 41.19 1 4,652,576 5,486,427 133,205 133,200 5,486,242 Earth Stations 3,400 1 1,023,000 1,173,000 345 345 1,173,000 Space Stations (Geostationary) 95 1 11,438,400 13,155,125 138,475 138,475 13,155,125 Space Stations (Non-Geostationary) 6 1 792,750 911,700 151,950 151,950 911,700 ****** Total Estimated Revenue to be Collected 340,593,961 385,006,402 384,890,362 ****** Total Revenue Requirement 339,844,000 384,012,497 384,012,497 Difference 749,961 993,905 877,865 Notes on Table 3 1 The AM and FM Construction Permit revenues were adjusted, respectively, to set the regulatory fee to an amount no higher than the lowest licensed fee for that class of service. 2 MDS/MMDS category was renamed Broadband Radio Service (BRS). See Amendment of Parts 1, 21, 73, 74 and 101 of the Commission's Rules to Facilitate the Provision of Fixed and Mobile Broadband Access, Educational and Other Advanced Services in the 2150-2162 and 2500-2690 MHz Bands, Report & Order and Further Notice of Proposed Rulemaking, 19 FCC Rcd 14165, 14169, paragraph 6 (2004). 3 The chart at the end of Table 4 lists the submarine cable bearer circuit regulatory fees (common and non-common carrier basis) that resulted from the adoption of Assessment and Collection of Regulatory Fees for Fiscal Year 2008, Report and Order and Further Notice of Proposed Rulemaking, 24 FCC Rcd 6388 (2008) and Assessment and Collection of Regulatory Fees for Fiscal Year 2008, Second Report and Order, 24 FCC Rcd 4208 (2009). 4 The fee amounts listed in the column entitled “Rounded New FY 2016 Regulatory Fee” constitute a weighted average media regulatory fee by class of service. The actual FY 2016 regulatory fees for AM/FM radio stations are listed on a grid located at the end of Table 4.
    Table 4—FY 2016 Schedule of Regulatory Fees [Regulatory fees for the first eight fee categories below are collected by the Commission in advance to cover the term of the license and are submitted at the time the application is filed.] Fee category Annual
  • regulatory fee
  • (U.S. $s)
  • PLMRS (per license) (Exclusive Use) (47 CFR part 90) 25 Microwave (per license) (47 CFR part 101) 25 Marine (Ship) (per station) (47 CFR part 80) 15 Marine (Coast) (per license) (47 CFR part 80) 40 Rural Radio (47 CFR part 22) (previously listed under the Land Mobile category) 10 PLMRS (Shared Use) (per license) (47 CFR part 90) 10 Aviation (Aircraft) (per station) (47 CFR part 87) 10 Aviation (Ground) (per license) (47 CFR part 87) 20 CMRS Mobile/Cellular Services (per unit) (47 CFR parts 20, 22, 24, 27, 80 and 90) .20 CMRS Messaging Services (per unit) (47 CFR parts 20, 22, 24 and 90) .08 Broadband Radio Service (formerly MMDS/MDS) (per license) (47 CFR part 27) 725 Local Multipoint Distribution Service (per call sign) (47 CFR, part 101) 725 AM Radio Construction Permits 620 FM Radio Construction Permits 1,075 Digital TV (47 CFR part 73) VHF and UHF Commercial Markets 1-10 60,675 Markets 11-25 45,675 Markets 26-50 30,525 Markets 51-100 15,200 Remaining Markets 5,000 Construction Permits 5,000 Satellite Television Stations (All Markets) 1,750 Low Power TV, Class A TV, TV/FM Translators & Boosters (47 CFR part 74) 455 CARS (47 CFR part 78) 775 Cable Television Systems (per subscriber) (47 CFR part 76), Including IPTV 1.00 Direct Broadcast Service (DBS) (per subscriber) (as defined by section 602(13) of the Act) .27 Interstate Telecommunication Service Providers (per revenue dollar) .00371 Toll Free (per toll free subscriber) (47 CFR section 52.101 (f) of the rules) .13 Earth Stations (47 CFR part 25) 345 Space Stations (per operational station in geostationary orbit) (47 CFR part 25) also includes DBS Service (per operational station) (47 CFR part 100) 138,475 Space Stations (per operational system in non-geostationary orbit) (47 CFR part 25) 151,950 International Bearer Circuits-Terrestrial/Satellites (per 64KB circuit) .02 Submarine Cable Landing Licenses Fee (per cable system) See Table Below
    FY 2016 Schedule of Regulatory Fees: [Table 4 continued] FY 2016 RADIO STATION REGULATORY FEES Population Served AM Class A AM Class B AM Class C AM Class D FM Classes A, B1 & C3 FM Classes B, C, C0, C1 & C2 <=25,000 $990 $715 $620 $685 $1,075 $1,250 25,001-75,000 1,475 1,075 925 1,025 1,625 1,850 75,001-150,000 2,200 1,600 1,375 1,525 2,400 2,750 150,001-500,000 3,300 2,375 2,075 2,275 3,600 4,125 500,001-1,200,000 5,500 3,975 3,450 3,800 6,000 6,875 1,200,001-3,000,00 8,250 5,950 5,175 5,700 9,000 10,300 3,000,001-6,000,00 11,000 7,950 6,900 7,600 12,000 13,750 >6,000,000 13,750 9,950 8,625 9,500 15,000 17,175 FY 2016 Schedule of Regulatory Fees [International Bearer Circuits—Submarine Cable (Table 4 continued)] Submarine cable systems
  • (capacity as of December 31, 2015)
  • Fee amount
    < 2.5 Gbps $8,325 2.5 Gbps or greater, but less than 5 Gbps 16,650 5 Gbps or greater, but less than 10 Gbps 33,300 10 Gbps or greater, but less than 20 Gbps 66,600 20 Gbps or greater 133,200
    Table 5—Sources of Payment Unit Estimates for FY 2016

    In order to calculate individual service fees for FY 2016, we adjusted FY 2015 payment units for each service to more accurately reflect expected FY 2016 payment liabilities. We obtained our updated estimates through a variety of means. For example, we used Commission licensee data bases, actual prior year payment records and industry and trade association projections when available. The databases we consulted include our Universal Licensing System (ULS), International Bureau Filing System (IBFS), Consolidated Database System (CDBS) and Cable Operations and Licensing System (COALS), as well as reports generated within the Commission such as the Wireless Telecommunications Bureau's Numbering Resource Utilization Forecast.

    We sought verification for these estimates from multiple sources and, in all cases, we compared FY 2016 estimates with actual FY 2015 payment units to ensure that our revised estimates were reasonable. Where appropriate, we adjusted and/or rounded our final estimates to take into consideration the fact that certain variables that impact on the number of payment units cannot yet be estimated with sufficient accuracy. These include an unknown number of waivers and/or exemptions that may occur in FY 2016 and the fact that, in many services, the number of actual licensees or station operators fluctuates from time to time due to economic, technical, or other reasons. When we note, for example, that our estimated FY 2016 payment units are based on FY 2015 actual payment units, it does not necessarily mean that our FY 2016 projection is exactly the same number as in FY 2015. We have either rounded the FY 2016 number or adjusted it slightly to account for these variables.

    Fee Category Sources of Payment Unit Estimates Land Mobile (All), Microwave, Marine (Ship & Coast), Aviation (Aircraft & Ground), Domestic Public Fixed Based on Wireless Telecommunications Bureau (WTB) projections of new applications and renewals taking into consideration existing Commission licensee data bases. Aviation (Aircraft) and Marine (Ship) estimates have been adjusted to take into consideration the licensing of portions of these services on a voluntary basis. CMRS Cellular/Mobile Services Based on WTB projection reports, and FY 2015 payment data. CMRS Messaging Services Based on WTB reports, and FY 2015 payment data. AM/FM Radio Stations Based on CDBS data, adjusted for exemptions, and actual FY 2015 payment units. Digital TV Stations (Combined VHF/UHF units) Based on CDBS data, adjusted for exemptions, and actual FY 2015 payment units. AM/FM/TV Construction Permits Based on CDBS data, adjusted for exemptions, and actual FY 2015 payment units. LPTV, Translators and Boosters, Class A Television Based on CDBS data, adjusted for exemptions, and actual FY 2015 payment units. BRS (formerly MDS/MMDS)
  • LMDS
  • Based on WTB reports and actual FY 2015 payment units.
  • Based on WTB reports and actual FY 2015 payment units.
  • Cable Television Relay Service (CARS) Stations Based on data from Media Bureau's COALS database and actual FY 2015 payment units. Cable Television System Subscribers, Including IPTV Subscribers Based on publicly available data sources for estimated subscriber counts and actual FY 2015 payment units. Interstate Telecommunication Service Providers Based on FCC Form 499-Q data for the four quarters of calendar year 2015, the Wireline Competition Bureau projected the amount of calendar year 2015 revenue that will be reported on 2016 FCC Form 499-A worksheets in April, 2016. Earth Stations Based on International Bureau (IB) licensing data and actual FY 2015 payment units. Space Stations (GSOs & NGSOs) Based on IB data reports and actual FY 2015 payment units. International Bearer Circuits Based on IB reports and submissions by licensees, adjusted as necessary. Submarine Cable Licenses Based on IB license information.
    Table 6—Factors, Measurements, and Calculations That Determines Station Signal Contours and Associated Population Coverages AM Stations

    For stations with nondirectional daytime antennas, the theoretical radiation was used at all azimuths. For stations with directional daytime antennas, specific information on each day tower, including field ratio, phase, spacing, and orientation was retrieved, as well as the theoretical pattern root-mean-square of the radiation in all directions in the horizontal plane (RMS) figure (milliVolt per meter (mV/m) @ 1 km) for the antenna system. The standard, or augmented standard if pertinent, horizontal plane radiation pattern was calculated using techniques and methods specified in sections 73.150 and 73.152 of the Commission's rules. Radiation values were calculated for each of 360 radials around the transmitter site. Next, estimated soil conductivity data was retrieved from a database representing the information in FCC Figure R3. Using the calculated horizontal radiation values, and the retrieved soil conductivity data, the distance to the principal community (5 mV/m) contour was predicted for each of the 360 radials. The resulting distance to principal community contours were used to form a geographical polygon. Population counting was accomplished by determining which 2010 block centroids were contained in the polygon. (A block centroid is the center point of a small area containing population as computed by the U.S. Census Bureau.) The sum of the population figures for all enclosed blocks represents the total population for the predicted principal community coverage area.

    FM Stations

    The greater of the horizontal or vertical effective radiated power (ERP) (kW) and respective height above average terrain (HAAT) (m) combination was used. Where the antenna height above mean sea level (HAMSL) was available, it was used in lieu of the average HAAT figure to calculate specific HAAT figures for each of 360 radials under study. Any available directional pattern information was applied as well, to produce a radial-specific ERP figure. The HAAT and ERP figures were used in conjunction with the Field Strength (50-50) propagation curves specified in 47 CFR 73.313 of the Commission's rules to predict the distance to the principal community (70 dBu (decibel above 1 microVolt per meter) or 3.17 mV/m) contour for each of the 360 radials. The resulting distance to principal community contours were used to form a geographical polygon. Population counting was accomplished by determining which 2010 block centroids were contained in the polygon. The sum of the population figures for all enclosed blocks represents the total population for the predicted principal community coverage area.

    Table 7—FY 2015 Schedule of Regulatory Fees [Regulatory fees for the first eight fee categories below are collected by the Commission in advance to cover the term of the license and are submitted at the time the application is filed.] Fee category Annual
  • regulatory fee
  • (U.S. $'s)
  • PLMRS (per license) (Exclusive Use) (47 CFR part 90) 30 Microwave (per license) (47 CFR part 101) 20 Marine (Ship) (per station) (47 CFR part 80) 15 Marine (Coast) (per license) (47 CFR part 80) 35 Rural Radio (47 CFR part 22) (previously listed under the Land Mobile category) 10 PLMRS (Shared Use) (per license) (47 CFR part 90) 10 Aviation (Aircraft) (per station) (47 CFR part 87) 10 Aviation (Ground) (per license) (47 CFR part 87) 20 CMRS Mobile/Cellular Services (per unit) (47 CFR parts 20, 22, 24, 27, 80 and 90) .17 CMRS Messaging Services (per unit) (47 CFR parts 20, 22, 24 and 90) .08 Broadband Radio Service (formerly MMDS/MDS) (per license) (47 CFR part 27) 635 Local Multipoint Distribution Service (per call sign) (47 CFR, part 101) 635 AM Radio Construction Permits 590 FM Radio Construction Permits 750 Digital TV (47 CFR part 73) VHF and UHF Commercial: Markets 1-10 46,825 Markets 11-25 43,200 Markets 26-50 27,625 Markets 51-100 16,275 Remaining Markets 4,850 Construction Permits 4,850 Satellite Television Stations (All Markets) 1,575 Low Power TV, Class A TV, TV/FM Translators & Boosters (47 CFR part 74) 440 CARS (47 CFR part 78) 660 Cable Television Systems (per subscriber) (47 CFR part 76), Including IPTV .96 Direct Broadcast Service (DBS) (per subscriber) (as defined by section 602(13) of the Act) .12 Interstate Telecommunication Service Providers (per revenue dollar) .00331 Toll Free (per toll free subscriber) (47 CFR section 52.101 (f) of the rules) .12 Earth Stations (47 CFR part 25) 310 Space Stations (per operational station in geostationary orbit) (47 CFR part 25) also includes DBS Service (per operational station) (47 CFR part 100) 119,150 Space Stations (per operational system in non-geostationary orbit) (47 CFR part 25) 132,125 International Bearer Circuits—Terrestrial/Satellites (per 64KB circuit) .03 Submarine Cable Landing Licenses Fee (per cable system) See Table Below
    FY 2015 Schedule of Regulatory Fees [Table 7 continued] FY 2015 Radio Station Regulatory Fees Population served AM Class A AM Class B AM Class C AM Class D FM Classes
  • A, B1 & C3
  • FM Classes
  • B, C, C0, C1
  • & C2
  • <=25,000 $775 $645 $590 $670 $750 $925 25,001-75,000 1,550 1,300 900 1,000 1,500 1,625 75,001-150,000 2,325 1,625 1,200 1,675 2,050 3,000 150,001-500,000 3,475 2,750 1,800 2,025 3,175 3,925 500,001-1,200,000 5,025 4,225 3,000 3,375 5,050 5,775 1,200,001-3,000,00 7,750 6,500 4,500 5,400 8,250 9,250 >3,000,000 9,300 7,800 5,700 6,750 10,500 12,025
    FY 2015 Schedule of Regulatory Fees [International bearer circuits—submarine cable (Table 7 continued)] Submarine cable systems
  • (capacity as of December 31, 2014)
  • Fee amount
    < 2.5 Gbps $7,175 2.5 Gbps or greater, but less than 5 Gbps 14,350 5 Gbps or greater, but less than 10 Gbps 28,675 10 Gbps or greater, but less than 20 Gbps 57,350 20 Gbps or greater 114,700
    VII. Final Regulatory Flexibility Analysis

    1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA),1 an Initial Regulatory Flexibility Analysis (IRFA) was included in the Notice of Proposed Rulemaking. 2 The Commission sought written public comment on these proposals including comment on the IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the IRFA.3

    1 5 U.S.C. 603. The RFA, 5 U.S.C. 601-612 has been amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), Public Law 104-121, Title II, 110 Stat. 847 (1996).

    2Assessment and Collection of Regulatory Fees for Fiscal Year 2016, Notice of Proposed Rulemaking, MD Docket No. 16-166, 81 FR 35680 (2016) (FY 2016 NPRM).

    3 5 U.S.C. 604.

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

    2. In this Report and Order, we conclude the Assessment and Collection of Regulatory Fees for Fiscal Year (FY) 2016 proceeding to collect $384,012,497.00 in regulatory fees for FY 2016, pursuant to section 9 of the Communications Act of 1934, as amended (Communications Act or Act).4 These regulatory fees will be due on September 27, 2016. Under section 9 of the Communications Act, regulatory fees are mandated by Congress and collected to recover the regulatory costs associated with the Commission's enforcement, policy and rulemaking, user information, and international activities in an amount that can be reasonably expected to equal the amount of the Commission's annual appropriation.5

    4 47 U.S.C. 159.

    5 47 U.S.C. 159(a).

    3. This FY 2016 Report and Order adopts a regulatory fee schedule that includes the following noteworthy changes from prior years: (1) An increase in regulatory fees across all fee categories to offset the Commission's facilities reduction costs; (2) an updated regulatory fee for Direct Broadcast Satellite (DBS) providers, a subcategory in the cable television and Internet Protocol Television (IPTV) category; and (3) adjustments to the regulatory fees on radio and television broadcasters, based on type and class of service and on the population served.

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

    4. None.

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

    5. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules and policies, if adopted.6 The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” 7 In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act.8 A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.9 Nationwide, there are a total of approximately 27.9 million small businesses, according to the SBA.10

    6 5 U.S.C. 603(b)(3).

    7 5 U.S.C. 601(6).

    8 5 U.S.C. 601(3) (incorporating by reference the definition of “small-business concern” in the Small Business Act, 15 U.S.C. 632). Pursuant to 5 U.S.C. 601(3), the statutory definition of a small business applies “unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.”

    9 15 U.S.C. 632.

    10See SBA, Office of Advocacy, “Frequently Asked Questions,” http://www.sba.gov/sites/default/files/FAQ_Sept_2012.pdf.

    6. Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as “establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.” 11 The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees.12 Census data for 2012 shows that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees.13 Thus, under this size standard, the majority of firms in this industry can be considered small.

    11http://www.census.gov/cgi-bin/sssd/naics/naicsrch.

    12See 13 CFR 120.201, NAICS Code 517110.

    13http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ5&prodType=table.

    7. Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. The closest applicable NAICS Code category is Wired Telecommunications Carriers as defined in paragraph 6 of this FRFA. Under the applicable SBA size standard, such a business is small if it has 1,500 or fewer employees.14 According to Commission data, census data for 2012 shows that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees.15 The Commission therefore estimates that most providers of local exchange carrier service are small entities that may be affected by the rules adopted.

    14 13 CFR 121.201, NAICS code 517110.

    15http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ5&prodType=table.

    8. Incumbent LECs. Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The closest applicable NAICS Code category is Wired Telecommunications Carriers as defined in paragraph 6 of this FRFA. Under that size standard, such a business is small if it has 1,500 or fewer employees.16 According to Commission data, 3,117 firms operated in that year. Of this total, 3,083 operated with fewer than 1,000 employees.17 Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by the rules and policies adopted. Three hundred and seven (307) Incumbent Local Exchange Carriers reported that they were incumbent local exchange service providers.18 Of this total, an estimated 1,006 have 1,500 or fewer employees.19

    16 13 CFR 121.201, NAICS code 517110.

    17http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ5&prodType=table.

    18See Trends in Telephone Service, Federal Communications Commission, Wireline Competition Bureau, Industry Analysis and Technology Division at Table 5.3 (September 2010) (Trends in Telephone Service).

    19Id.

    9. Competitive Local Exchange Carriers (Competitive LECs), Competitive Access Providers (CAPs), Shared-Tenant Service Providers, and Other Local Service Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate NAICS Code category is Wired Telecommunications Carriers, as defined in paragraph 6 of this FRFA. Under that size standard, such a business is small if it has 1,500 or fewer employees.20 U.S. Census data for 2012 indicate that 3,117 firms operated during that year. Of that number, 3,083 operated with fewer than 1,000 employees.21 Based on this data, the Commission concludes that the majority of Competitive LECS, CAPs, Shared-Tenant Service Providers, and Other Local Service Providers, are small entities. According to Commission data, 1,442 carriers reported that they were engaged in the provision of either competitive local exchange services or competitive access provider services.22 Of these 1,442 carriers, an estimated 1,256 have 1,500 or fewer employees.23 In addition, 17 carriers have reported that they are Shared-Tenant Service Providers, and all 17 are estimated to have 1,500 or fewer employees.24 Also, 72 carriers have reported that they are Other Local Service Providers.25 Of this total, 70 have 1,500 or fewer employees.26 Consequently, based on internally researched FCC data, the Commission estimates that most providers of competitive local exchange service, competitive access providers, Shared-Tenant Service Providers, and Other Local Service Providers are small entities.

    20 13 CFR 121.201, NAICS code 517110.

    21http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ5&prodType=table.

    22See Trends in Telephone Service, at Table 5.3.

    23Id.

    24Id.

    25Id.

    26Id.

    10. Interexchange Carriers (IXCs). Neither the Commission nor the SBA has developed a definition for Interexchange Carriers. The closest NAICS Code category is Wired Telecommunications Carriers as defined in paragraph 6 of this FRFA. The applicable size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees.27 U.S. Census data for 2012 indicates that 3,117 firms operated during that year. Of that number, 3,083 operated with fewer than 1,000 employees.28 According to internally developed Commission data, 359 companies reported that their primary telecommunications service activity was the provision of interexchange services.29 Of this total, an estimated 317 have 1,500 or fewer employees.30 Consequently, the Commission estimates that the majority of interexchange service providers are small entities that may be affected by the rules adopted.

    27 13 CFR 121.201, NAICS code 517110.

    28 Includes AM radio, FM radio, television (including low power and Class A), TV/FM translators and boosters, cable and IPTV, DBS, and Cable Television Relay Service (CARS) licenses.

    29See Trends in Telephone Service, at Table 5.3.

    30Id.

    11. Prepaid Calling Card Providers. Neither the Commission nor the SBA has developed a small business definition specifically for prepaid calling card providers. The most appropriate NAICS code-based category for defining prepaid calling card providers is Telecommunications Resellers. This industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. Mobile virtual networks operators (MVNOs) are included in this industry.31 Under the applicable SBA size standard, such a business is small if it has 1,500 or fewer employees.32 U.S. Census data for 2012 show that 1,341 firms provided resale services during that year. Of that number, 1,341 operated with fewer than 1,000 employees.33 Thus, under this category and the associated small business size standard, the majority of these prepaid calling card providers can be considered small entities. According to Commission data, 193 carriers have reported that they are engaged in the provision of prepaid calling cards.34 All 193 carriers have 1,500 or fewer employees.35 Consequently, the Commission estimates that the majority of prepaid calling card providers are small entities that may be affected by the rules adopted.

    31http://www.census.gov/cgi-bin/ssd/naics/naicsrch.

    32 13 CFR 121.201, NAICS code 517911.

    33http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ5&prodType=table.

    34See Trends in Telephone Service, at Table 5.3.

    35Id.

    12. Local Resellers. Neither the Commission nor the SBA has developed a small business size standard specifically for Local Resellers. The SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees.36 Census data for 2012 show that 1,341 firms provided resale services during that year. Of that number, 1,341 operated with fewer than 1,000 employees.37 Under this category and the associated small business size standard, the majority of these local resellers can be considered small entities. According to Commission data, 213 carriers have reported that they are engaged in the provision of local resale services.38 Of this total, an estimated 211 have 1,500 or fewer employees.39 Consequently, the Commission estimates that the majority of local resellers are small entities that may be affected by the rules adopted.

    36 13 CFR 121.201, NAICS code 517911.

    37http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ5&prodType=table.

    38See Trends in Telephone Service, at Table 5.3.

    39Id.

    13. Toll Resellers. The Commission has not developed a definition for Toll Resellers. The closest NAICS Code Category is Telecommunications Resellers, and the SBA has developed a small business size standard for the category of Telecommunications Resellers.40 Under that size standard, such a business is small if it has 1,500 or fewer employees.41 Census data for 2012 show that 1,341 firms provided resale services during that year. Of that number, 1,341 operated with fewer than 1,000 employees.42 Thus, under this category and the associated small business size standard, the majority of these resellers can be considered small entities. According to Commission data, 881 carriers have reported that they are engaged in the provision of toll resale services.43 Of this total, an estimated 857 have 1,500 or fewer employees.44 Consequently, the Commission estimates that the majority of toll resellers are small entities.

    40 13 CFR 121.201, NAICS code 517911.

    41http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ5&prodType=table.

    42Id.

    43Trends in Telephone Service, at Table 5.3.

    44Id.

    14. Other Toll Carriers. Neither the Commission nor the SBA has developed a definition for small businesses specifically applicable to Other Toll Carriers. This category includes toll carriers that do not fall within the categories of interexchange carriers, operator service providers, prepaid calling card providers, satellite service carriers, or toll resellers. The closest applicable NAICS Code category is for Wired Telecommunications Carriers as defined in paragraph 6 of this FRFA. Under the applicable SBA size standard, such a business is small if it has 1,500 or fewer employees.45 Census data for 2012 shows that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees.46 Thus, under this category and the associated small business size standard, the majority of Other Toll Carriers can be considered small. According to internally developed Commission data, 284 companies reported that their primary telecommunications service activity was the provision of other toll carriage.47 Of these, an estimated 279 have 1,500 or fewer employees.48 Consequently, the Commission estimates that most Other Toll Carriers are small entities.

    45 13 CFR 121.201, NAICS code 517110.

    46http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ5&prodType=table.

    47Trends in Telephone Service, at Table 5.3.

    48Id.

    15. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless Internet access, and wireless video services.49 The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had fewer than 1,000 employees. Thus under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities. Similarly, according to internally developed Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service (PCS), and Specialized Mobile Radio (SMR) services.50 Of this total, an estimated 261 have 1,500 or fewer employees.51 Thus, using available data, we estimate that the majority of wireless firms can be considered small.

    49 NAICS Code 517210. See http://www.census.gov/cgi-bin/ssd/naics/naiscsrch.

    50Trends in Telephone Service, at Table 5.3.

    51Id.

    16. Television Broadcasting. This Economic Census category “comprises establishments primarily engaged in broadcasting images together with sound. These establishments operate television broadcasting studios and facilities for the programming and transmission of programs to the public.” 52 These establishments also produce or transmit visual programming to affiliated broadcast television stations, which in turn broadcast the programs to the public on a predetermined schedule. Programming may originate in their own studio, from an affiliated network, or from external sources. The SBA has created the following small business size standard for Television Broadcasting firms: Those having $38.5 million or less in annual receipts.53 The 2012 Economic Census reports that 751 television broadcasting firms operated during that year. Of that number, 656 had annual receipts of less than $25 million per year. Based on that Census data we conclude that a majority of firms that operate television stations are small. The Commission has estimated the number of licensed commercial television stations to be 1,387.54 In addition, according to Commission staff review of the BIA Advisory Services, LLC's Media Access Pro Television Database, on March 28, 2012, about 950 of an estimated 1,300 commercial television stations (or approximately 73 percent) had revenues of $14 million or less.55 We therefore estimate that the majority of commercial television broadcasters are small entities.

    52 U.S. Census Bureau, 2012 NAICS Code Economic Census Definitions, http://www.census.gov.cgi-bin/sssd/naics/naicsrch.

    53 13 CFR 121.201, NAICS code 515120.

    54See FCC News Release, “Broadcast Station Totals as of December 31, 2011,” dated January 6, 2012; http://transition.fcc.gov/Daily_Releases/Daily_Business/2012/db0106/DOC-311837A1.pdf.

    55 We recognize that BIA's estimate differs slightly from the FCC total given supra.

    17. In assessing whether a business concern qualifies as small under the above definition, business (control) affiliations 56 must be included. Our estimate, therefore, likely overstates the number of small entities that might be affected by our action, because the revenue figure on which it is based does not include or aggregate revenues from affiliated companies. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply does not exclude any television station from the definition of a small business on this basis and is therefore possibly over-inclusive to that extent.

    56 “[Business concerns] are affiliates of each other when one concern controls or has the power to control the other or a third party or parties controls or has to power to control both.” 13 CFR 21.103(a)(1).

    18. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 396.57 These stations are non-profit, and therefore considered to be small entities.58 There are also 2,528 low power television stations, including Class A stations (LPTV).59 Given the nature of these services, we will presume that all LPTV licensees qualify as small entities under the above SBA small business size standard.

    57See FCC News Release, “Broadcast Station Totals as of December 31, 2011,” dated January 6, 2012; http://transition.fcc.gov/Daily_Releases/Daily_Business/2012/db0106/DOC-311837A1.pdf.

    58See generally 5 U.S.C. 601(4), (6).

    59See FCC News Release, “Broadcast Station Totals as of December 31, 2011,” dated January 6, 2012; http://transition.fcc.gov/Daily_Releases/Daily_Business/2012/db0106/DOC-311837A1.pdf.

    19. Radio Stations. This Economic Census category “comprises establishments primarily engaged in broadcasting aural programs by radio to the public. Programming may originate in their own studio, from an affiliated network, or from external sources.” 60 The SBA has established a small business size standard for this category, which is: Such firms having $38.5 million or less in annual receipts.61 Census data for 2012 show that 2,849 radio station firms operated during that year. Of that number, 2,806 operated with annual receipts of less than $25 million per year.62 According to Commission staff review of BIA Advisory Services, LLC's Media Access Pro Radio Database, on March 28, 2012, about 10,759 (97 percent) of 11,102 commercial radio stations had revenues of $38.5 million or less. Therefore, the majority of such entities are small entities.

    60https://www.census.gov.cgi-bin/sssd/naics/naicsrch.

    61 13 CFR 121.201, NAICS code 515112.

    62http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ5&prodType=table.

    20. In assessing whether a business concern qualifies as small under the above size standard, business affiliations must be included.63 In addition, to be determined to be a “small business,” the entity may not be dominant in its field of operation.64 We note that it is difficult at times to assess these criteria in the context of media entities, and our estimate of small businesses may therefore be over-inclusive.

    63 “Concerns and entities are affiliates of each other when one controls or has the power to control the other, or a third party or parties controls or has the power to control both. It does not matter whether control is exercised, so long as the power to control exists.” 13 CFR 121.103(a)(1) (an SBA regulation).

    64 13 CFR 121.102(b) (an SBA regulation).

    21.Cable Television and Other Subscription Programming. This industry comprises establishments primarily engaged in operating studios and facilities for the broadcasting of programs on a subscription or fee basis. The broadcast programming is typically narrowcast in nature (e.g., limited format, such as news, sports, education, or youth-oriented). These establishments produce programming in their own facilities or acquire programming from external sources. The programming material is usually delivered to a third party, such as cable systems or direct-to-home satellite systems, for transmission to viewers.65 The SBA has established a size standard for this industry of $38.5 million or less. Census data for 2012 shows that there were 367 firms that operated that year. Of this total, 319 operated with annual receipts of less than $25 million.66 Thus under this size standard, the majority of firms offering cable and other program distribution services can be considered small and may be affected by rules adopted.

    65https://www.census.gov.cgi-bin/sssd/naics/naicsrch.

    66http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US-51SSSZ5&prodType=Table.

    22. Cable Companies and Systems. The Commission has developed its own small business size standards for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide.67 Industry data indicate that there are currently 4,600 active cable systems in the United States.68 Of this total, all but ten cable operators nationwide are small under the 400,000-subscriber size standard.69 In addition, under the Commission's rate regulation rules, a “small system” is a cable system serving 15,000 or fewer subscribers.70 Current Commission records show 4,600 cable systems nationwide.71 Of this total, 3,900 cable systems have fewer than 15,000 subscribers, and 700 systems have 15,000 or more subscribers, based on the same records.72 Thus, under this standard as well, we estimate that most cable systems are small entities.

    67 47 CFR 76.901(e).

    68 August 15, 2015 Report from the Media Bureau based on data contained in the Commission's Cable Operations and Licensing System (COALS). See www/fcc.gov/coals.

    69See SNL KAGAN at www.snl.com/interactiveX/top cableMSOs aspx?period2015Q1&sortcol=subscribersbasic&sortorder=desc.

    70 47 CFR 76.901(c).

    71See footnote 2, supra.

    72 August 5, 2015 report from the Media Bureau based on its research in COALS. See www.fcc.gov/coals.

    23. Cable System Operators (Telecom Act Standard). The Communications Act also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than 1 percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” 73 There are approximately 52,403,705 cable video subscribers in the United States today.74 Accordingly, an operator serving fewer than 524,037 subscribers shall be deemed a small operator if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate.75 Based on available data, we find that all but nine incumbent cable operators are small entities under this size standard.76 We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million.77 Although it seems certain that some of these cable system operators are affiliated with entities whose gross annual revenues exceed $250 million, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

    73 47 CFR 76.901(f) and notes ff. 1, 2, and 3.

    74See SNL KAGAN at www.snl.com/interactivex/MultichannelIndustryBenchmarks.aspx.

    75 47 CFR 76.901(f) and notes ff. 1, 2, and 3.

    76See SNL KAGAN at www.snl.com/interactivex/TopCable MSOs.aspx.

    77 The Commission does receive such information on a case-by-case basis if a cable operator appeals a local franchise authority's finding that the operator does not qualify as a small cable operator pursuant to section 76.901(f) of the Commission's rules. See 47 CFR 76.901(f).

    24. Direct Broadcast Satellite (DBS) Service. DBS Service is a nationally distributed subscription service that delivers video and audio programming via satellite to a small parabolic dish antenna at the subscriber's location. DBS is now included in SBA's economic census category “Wired Telecommunications Carriers.” The Wired Telecommunications Carriers industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution; and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.78 The SBA determines that a wireline business is small if it has fewer than 1,500 employees.79 Census data for 2012 indicate that 3,117 wireline companies were operational during that year. Of that number, 3,083 operated with fewer than 1,000 employees.80 Based on that data, we conclude that the majority of wireline firms are small under the applicable standard. However, currently only two entities provide DBS service, which requires a great deal of capital for operation: AT&T and DISH Network.81 AT&T and DISH Network each report annual revenues that are in excess of the threshold for a small business. Accordingly, we must conclude that internally developed FCC data are persuasive that in general DBS service is provided only by large firms.

    78http://www.census.gov/cgi-bin/sssd/naics/naicsrch.

    79 NAICs CODE 517110; 13 CFR 121.201.

    80http://factfinder.census.gov/faces/tableservices.jasf/pages/productview.xhtml?pid+ECN_2012_US.51SSSZ4&prodType=table.

    81See 15th Annual Video Competition Report, 28 FCC Rcd at 1057, Section 27.

    25. All Other Telecommunications. “All Other Telecommunications” is defined as follows: This U.S. industry is comprised of establishments that are primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing Internet services or voice over Internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry.82 The SBA has developed a small business size standard for “All Other Telecommunications,” which consists of all such firms with gross annual receipts of $32.5 million or less.83 For this category, census data for 2012 show that there were 1,442 firms that operated for the entire year. Of these firms, a total of 1,400 had gross annual receipts of less than $25 million.84 Thus, a majority of “All Other Telecommunications” firms potentially affected by the rules adopted can be considered small.

    82http://www.census.gov/cgi-bin/ssssd/naics/naicsrch.

    83 13 CFR 121.201; NAICS Code 517919.

    84http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ4&prodType=table.

    26. RespOrgs. RespOrgs, i.e., Responsible Organizations, are entities chosen by toll free subscribers to manage and administer the appropriate records in the toll free Service Management System for the toll free subscriber.85 Although RespOrgs are often wireline carriers, they can also include non-carrier entities. Therefore, in the definition herein of RespOrgs, two categories are presented, i.e., Carrier RespOrgs and Non-Carrier RespOrgs.

    85See 47 CFR 52.101(b).

    27. Carrier RespOrgs. Neither the Commission, the U.S. Census, nor the SBA have developed a definition for Carrier RespOrgs. Accordingly, the Commission believes that the closest NAICS Code-based definitional categories for Carrier RespOrgs are Wired Telecommunications Carriers,86 and Wireless Telecommunications Carriers (except satellite).87

    86 13 CFR 121.201, NAICS Code 517110.

    87 13 CFR 121.201, NAICS Code 517210.

    28. The U.S. Census Bureau defines Wired Telecommunications Carriers as establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.88 The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees.89 Census data for 2012 show that there were 3,117 Wired Telecommunications Carrier firms that operated for that entire year. Of that number, 3,083 operated with less than 1,000 employees.90 Based on that data, we conclude that the majority of Carrier RespOrgs that operated with wireline-based technology are small.

    88http://www.census,gov/cgi-bin/sssd/naics.naicsrch.

    89 13 CFR 120,201, NAICS Code 517110.

    90http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ4&prodType=table.

    29. The U.S. Census Bureau defines Wireless Telecommunications Carriers (except satellite) as establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves, such as cellular services, paging services, wireless internet access, and wireless video services.91 The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees.92 Census data for 2012 show that 967 Wireless Telecommunications Carriers operated in that year. Of that number, 955 operated with less than 1,000 employees.93 Based on that data, we conclude that the majority of Carrier RespOrgs that operated with wireless-based technology are small.

    91http://www.census,gov/cgi-bin/sssd/naics.naicsrch.

    92 13 CFR 120.201, NAICS Code 517120.

    93http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ4&prodType=table.

    30. Non-Carrier RespOrgs. Neither the Commission, the Census, nor the SBA have developed a definition of Non-Carrier RespOrgs. Accordingly, the Commission believes that the closest NAICS Code-based definitional categories for Non-Carrier RespOrgs are “Other Services Related To Advertising” 94 and “Other Management Consulting Services.” 95

    94 13 CFR 120.201, NAICS Code 541890.

    95 13 CFR 120.201, NAICS Code 541618.

    31. The U.S. Census defines Other Services Related to Advertising as comprising establishments primarily engaged in providing advertising services (except advertising agency services, public relations agency services, media buying agency services, media representative services, display advertising services, direct mail advertising services, advertising material distribution services, and marketing consulting services? 96 The SBA has established a size standard for this industry as annual receipts of $15 million dollars or less.97 Census data for 2012 show that 5,804 firms operated in this industry for the entire year. Of that number, 5,249 operated with annual receipts of less than $10 million.98 Based on that data we conclude that the majority of Non-Carrier RespOrgs who provide TFN-related advertising services are small.

    96http://www.census,gov/cgi-bin/sssd/naics.naicsrch.

    97 13 CFR 120.201, NAICS Code 541890.

    98http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ4&prodType=table.

    32. The U.S. Census defines Other Management Consulting Services as establishments primarily engaged in providing management consulting services (except administrative and general management consulting; human resources consulting; marketing consulting; or process, physical distribution, and logistics consulting). Establishments providing telecommunications or utilities management consulting services are included in this industry.99 The SBA has established a size standard for this industry of $15 million dollars or less.100 Census data for 2012 show that 3,683 firms operated in this industry for that entire year. Of that number, 3,632 operated with less than $10 million in annual receipts.101 Based on this data, we conclude that a majority of non-carrier RespOrgs who provide TFN-related management consulting services are small.102

    99http://www.census,gov/cgi-bin/sssd/naics.naicsrch.

    100 13 CFR 120.201, NAICS CODE 514618.

    101http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_51SSSZ4&prodType=table.

    102 The four NAICS Code-based categories selected above to provide definitions for Carrier and Non-Carrier RespOrgs were selected because as a group they refer generically and comprehensively to all RespOrgs. Therefore, all RespOrgs, including those not identified specifically or individually, must comply with the rules adopted in the Regulatory Fees Report and Order associated with this Final Regulatory Flexibility Analysis.

    33. In addition to the data contained in the four (see above) U.S. Census NAICS Code categories that provide definitions of what services and functions the Carrier and Non-Carrier RespOrgs provide, Somos, the trade association that monitors RespOrg activities, compiled data showing that as of July 1, 2016 there were 23 RespOrgs operational in Canada and 436 RespOrgs operational in the United States, for a total of 459 RespOrgs currently registered with Somos.103

    103 Email from Jennifer Blanchard of Somos dated July 1, 2016.

    D. Description of Projected Reporting, Recordkeeping and Other Compliance Requirements

    34. This Report and Order does not adopt any new reporting, recordkeeping, or other compliance requirements.

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

    35. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its approach, which may include the following four alternatives, among others: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.104

    104 5 U.S.C. 603(c)(1) through (c)(4).

    36. This Report and Order does not adopt any new reporting requirements. Therefore no adverse economic impact on small entities will be sustained based on reporting requirements.

    37. In keeping with the requirements of the Regulatory Flexibility Act, we have considered certain alternative means of mitigating the effects of fee increases to a particular industry segment. For example, beginning last year, in FY 2015, the Commission increased the de minimis threshold from under $10 to $500 (the total of all annual regulatory fees), which will impact many small entities that pay regulatory fees for ITSP, paging, cellular, cable, and Low Power Television/FM Translators. Historically, many of these small entities have been late in making their fee payments to the Commission by the due date. This increase in the de minimis threshold to $500 will relieve regulatees both financially and administratively. This Report and Order also adopts regulatory fees for the smaller market AM and FM stations at a lower amount than had been proposed. Finally, regulatees may also seek waivers or other relief on the basis of financial hardship. See 47 CFR 1.1166.

    F. Federal Rules That May Duplicate, Overlap, or Conflict

    38. None.

    VIII. Ordering Clauses

    39. Accordingly, IT IS ORDERED that, pursuant to Sections 4(i) and (j), 9, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 159, and 303(r), this Report and Order IS HEREBY ADOPTED.

    40. IT IS FURTHER ORDERED that this Report and Order SHALL BE EFFECTIVE September 26, 2016.

    41. IT IS FURTHER ORDERED that the Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the U.S. Small Business Administration.

    List of Subjects in 47 CFR Part 1

    Administrative practice and procedure, Radio, Reporting and recordkeeping requirements.

    Federal Communications Commission.

    Marlene H. Dortch. Secretary.
    Rule Changes

    For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR, part 1 as follows:

    PART 1—PRACTICE AND PROCEDURE 1. The authority citation for part 1 continues to read as follows: Authority:

    47 U.S.C. 151, 154(i), 155, 157, 225, 303(r), 309, 1403, 1404, 1451, and 1452.

    2. Section 1.1152 is revised to read as follows:
    § 1.1152 Schedule of annual regulatory fees for wireless radio services. Exclusive use services
  • (per license)
  • Fee amount 1
    1. Land Mobile (Above 470 MHz and 220 MHz Local, Base Station & SMRS) (47 CFR part 90) (a) New, Renew/Mod (FCC 601 & 159) $25.00 (b) New, Renew/Mod (Electronic Filing) (FCC 601 & 159) 25.00 (c) Renewal Only (FCC 601 & 159) 25.00 (d) Renewal Only (Electronic Filing) (FCC 601 & 159) 25.00 220 MHz Nationwide: (a) New, Renew/Mod (FCC 601 & 159) 25.00 (b) New, Renew/Mod (Electronic Filing) (FCC 601 & 159) 25.00 (c) Renewal Only (FCC 601 & 159) 25.00 (d) Renewal Only (Electronic Filing) (FCC 601 & 159) 25.00 2. Microwave (47 CFR Pt. 101) (Private) (a) New, Renew/Mod (FCC 601 & 159) 25.00 (b) New, Renew/Mod (Electronic Filing) (FCC 601 & 159) 25.00 (c) Renewal Only (FCC 601 & 159) 25.00 (d) Renewal Only (Electronic Filing) (FCC 601 & 159) 25.00 3. Shared Use Services Land Mobile (Frequencies Below 470 MHz—except 220 MHz) (a) New, Renew/Mod (FCC 601 & 159) 10.00 (b) New, Renew/Mod (Electronic Filing) (FCC 601 & 159) 10.00 (c) Renewal Only (FCC 601 & 159) 10.00 (d) Renewal Only (Electronic Filing) (FCC 601 & 159) 10.00 Rural Radio (Part 22): (a) New, Additional Facility, Major Renew/Mod (Electronic Filing) (FCC 601 & 159) 10.00 (b) Renewal, Minor Renew/Mod (Electronic Filing) (FCC 601 & 159) Marine Coast 10.00 (a) New Renewal/Mod (FCC 601 & 159) 40.00 (b) New, Renewal/Mod (Electronic Filing) (FCC 601 & 159) 40.00 (c) Renewal Only (FCC 601 & 159) 40.00 (d) Renewal Only (Electronic Filing) (FCC 601 & 159) 40.00 Aviation Ground: (a) New, Renewal/Mod (FCC 601 & 159) 20.00 (b) New, Renewal/Mod (Electronic Filing) (FCC 601 & 159) 20.00 (c) Renewal Only (FCC 601 & 159) 20.00 (d) Renewal Only (Electronic Only) (FCC 601 & 159) 20.00 Marine Ship (a) New, Renewal/Mod (FCC 605 & 159) 15.00 (b) New, Renewal/Mod (Electronic Filing) (FCC 605 & 159) 15.00 (c) Renewal Only (FCC 605 & 159) 15.00 (d) Renewal Only (Electronic Filing) (FCC 605 & 159) 15.00 Aviation Aircraft: (a) New, Renew/Mod (FCC 605 & 159) 10.00 (b) New, Renew/Mod (Electronic Filing) (FCC 605 & 159) 10.00 (c) Renewal Only (FCC 605 & 159) 10.00 (d) Renewal Only (Electronic Filing) (FCC 605 & 159) 10.00 4. CMRS Cellular/Mobile Services (per unit) (FCC 159) 2 .20 5. CMRS Messaging Services (per unit) (FCC 159) 3.08 6. Broadband Radio Service (formerly MMDS and MDS) 725 7. Local Multipoint Distribution Service 725 1 Note that “small fees” are collected in advance for the entire license term. Therefore, the annual fee amount shown in this table that is a small fee (categories 1 through 5) must be multiplied by the 10-year license term to arrive at the total amount of regulatory fees owed. Also, application fees may apply as detailed in section 1.1102 of this chapter. 2 These are standard fees that are to be paid in accordance with section 1.1157(b) of this chapter. 3 These are standard fees that are to be paid in accordance with section 1.1157(b) of this chapter.
    3. Section 1.1153 is revised to read as follows:
    § 1.1153 Schedule of annual regulatory fees and filing locations for mass media services. Radio [AM and FM]
  • (47 CFR part 73)
  • Fee amount
    1. AM Class A: <=25,000 population $990 25,001-75,000 population 1,475 75,001-150,000 population 2,200 150,001-500,000 population 3,300 500,001-1,200,000 population 5,500 1,200,001-3,000,000 population 8,250 3,000,001-6,000,000 population 11,000 >6,000,000 population 13,750 2. AM Class B: <=25,000 population 715 25,001-75,000 population 1,075 75,001-150,000 population 1,600 150,001-500,000 population 2,375 500,001-1,200,000 population 3,975 1,200,001-3,000,000 population 5,950 3,000,001-6,000,000 population 7,950 >6,000,000 population 9,950 3. AM Class C: <=25,000 population 620 25,001-75,000 population 925 75,001-150,000 population 1,375 150,001-500,000 population 2,075 500,001-1,200,000 population 3,450 1,200,001-3,000,000 population 5,175 3,000,001-6,000,000 population 6,900 >6,000,000 population 8,625 4. AM Class D: <=25,000 population 685 25,001-75,000 population 1,025 75,001-150,000 population 1,525 150,001-500,000 population 2,275 500,001-1,200,000 population 3,800 1,200,001-3,000,000 population 5,700 3,000,001-6,000,000 population 7,600 >6,000,000 population 9,500 5. AM Construction Permit 620 6. FM Classes A, B1 and C3: <=25,000 population 1,075 25,001-75,000 population 1,625 75,001-150,000 population 2,400 150,001-500,000 population 3,600 500,001-1,200,000 population 6,000 1,200,001-3,000,000 population 9,000 3,000,001-6,000,000 population 12,000 >6,000,000 population 15,000 7. FM Classes B, C, C0, C1 and C2: <=25,000 population 1,250 25,001-75,000 population 1,850 75,001-150,000 population 2,750 150,001-500,000 population 4,125 500,001-1,200,000 population 6,875 1,200,001-3,000,000 population 10,300 3,000,001-6,000,000 population 13,750 >6,000,000 population 17,175 8. FM Construction Permits 1,075 TV (47 CFR, part 73) Digital TV (UHF and VHF Commercial Stations): 1. Markets 1 thru 10 $60,675 2. Markets 11 thru 25 45,675 3. Markets 26 thru 50 30,525 4. Markets 51 thru 100 15,200 5. Remaining Markets 5,000 6. Construction Permits 5,000 Satellite UHF/VHF Commercial: 1. All Markets 1,750 Low Power TV, Class A TV, TV/FM Translator, & TV/FM Booster (47 CFR part 74) 455
    4. Section 1.1154 is revised to read as follows:
    § 1.1154 Schedule of annual regulatory charges for common carrier services. Radio facilities Fee amount 1. Microwave (Domestic Public Fixed) (Electronic Filing) (FCC Form 601 & 159) $25.00. Carriers 1. Interstate Telephone Service Providers (per interstate and international end-user revenues (see FCC Form 499-A) $.00371. 2. Toll Free Number Fee $.13 per Toll Free Number.
    5. Section 1.1155 is revised to read as follows:
    § 1.1155 Schedule of regulatory fees for cable television services. Fee amount 1. Cable Television Relay Service $775. 2. Cable TV System, Including IPTV (per subscriber) $1.00. 3. Direct Broadcast Satellite (DBS) $.27 per subscriber.
    6. Section 1.1156 is revised to read as follows:
    § 1.1156 Schedule of regulatory fees for international services.

    (a) The following schedule applies for the listed services:

    Fee category Fee amount Space Stations (Geostationary Orbit) $138,475. Space Stations (Non-Geostationary Orbit) $151,950. Earth Stations: Transmit/Receive & Transmit only (per authorization or registration) $345.

    (b) International Terrestrial and Satellite. (1) Regulatory fees for International Bearer Circuits are to be paid by facilities-based common carriers that have active (used or leased) international bearer circuits as of December 31 of the prior year in any terrestrial or satellite transmission facility for the provision of service to an end user or resale carrier, which includes active circuits to themselves or to their affiliates. In addition, non-common carrier satellite operators must pay a fee for each circuit sold or leased to any customer, including themselves or their affiliates, other than an international common carrier authorized by the Commission to provide U.S. international common carrier services. “Active circuits” for these purposes include backup and redundant circuits. In addition, whether circuits are used specifically for voice or data is not relevant in determining that they are active circuits.

    (2) The fee amount, per active 64 KB circuit or equivalent will be determined for each fiscal year.

    International terrestrial and satellite
  • (capacity as of
  • December 31, 2015)
  • Fee amount
    Terrestrial Common Carrier
  • Satellite Common Carrier.
  • Satellite Non-Common Carrier
  • $0.02 per 64 KB Circuit.

    (c) Submarine cable: Regulatory fees for submarine cable systems will be paid annually, per cable landing license, for all submarine cable systems operating as of December 31 of the prior year. The fee amount will be determined by the Commission for each fiscal year.

    Submarine cable systems
  • (capacity as of
  • Dec. 31, 2015)
  • Fee amount
    <2.5 Gbps $8,325. 2.5 Gbps or greater, but less than 5 Gbps $16,650. 5 Gbps or greater, but less than 10 Gbps $33,300. 10 Gbps or greater, but less than 20 Gbps $66,600. 20 Gbps or greater $133,200.
    [FR Doc. 2016-22216 Filed 9-23-16; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 64 [CG Docket No. 10-210; FCC 16-101] Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Section 105, Relay Services for Deaf-Blind Individuals AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    In this document, the Federal Communications Commission (Commission) adopts rules to convert the National Deaf-Blind Equipment Distribution Program (NDBEDP) from a pilot program to a permanent program. The NDBEDP supports the distribution of communications devices to low-income individuals who are deaf-blind.

    DATES:

    The addition of 47 CFR 64.6201, 64.6203, and 64.6205 of the Commission's rules are effective July 1, 2017. The addition of 47 CFR part 64, subpart GG, consisting of §§ 64.6207, 64.6209, 64.6211, 64.6213, 64.6215, 64.6217, and 64.6219, contains information collection requirements that are not effective until approved by the Office of Management and Budget (OMB). The Commission will publish a document in the Federal Register announcing the effective date for those sections.

    FOR FURTHER INFORMATION CONTACT:

    Rosaline Crawford, Disability Rights Office, Consumer and Governmental Affairs Bureau, at (202) 418-2075 or email [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Section 105, Relay Services for Deaf-Blind Individuals, Report and Order, document FCC 16-101, adopted on August 4, 2016, and released on August 5, 2016, in CG Docket No. 10-210. The full text of document FCC 16-101 will be available for public inspection and copying via ECFS, and during regular business hours at the FCC Reference Information Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC 20554. Document FCC 16-101 can also be downloaded in Word or Portable Document Format (PDF) at http://www.fcc.gov/ndbedp. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (844) 432-2275 (videophone), or (202) 418-0432 (TTY).

    Final Paperwork Reduction Act of 1995 Analysis

    Document FCC 16-101 contains new information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, will invite the general public to comment on the information collection requirements contained in document FCC 16-101 as required by the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, the Commission notes that, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C. 3506(c)(4), the Commission previously sought comment on how the Commission might “further reduce the information collection burden for small business concerns with fewer than 25 employees.” See Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Section 105, Relay Services for Deaf-Blind Individuals, Notice of Proposed Rulemaking, published at 80 FR 32885, June 10, 2015 (NDBEDP 2015 NPRM).

    Synopsis

    1. The Twenty-First Century Communications and Video Accessibility Act (CVAA) added section 719 to the Communications Act of 1934, as amended (the Act). Public Law 111-260, 105, 124 Stat. 2751, 2762 (2010); technical corrections Public Law 111-265, 124 Stat. 2795 (2010); 47 U.S.C. 620. Section 719 of the Act directs the Commission to promulgate rules that define as eligible for up to $10 million of support annually from the Interstate Telecommunications Relay Service Fund (TRS Fund) those programs approved by the Commission for the distribution of specialized customer premises equipment (SCPE) designed to make telecommunications service, Internet access service, and advanced communications accessible by low-income individuals who are deaf-blind. Since July 2012, the Commission's Consumer and Governmental Affairs Bureau (CGB or Bureau) has implemented the NDBEDP, also known as “iCanConnect,” as a pilot program by certifying and overseeing 53 entities, collectively referred to as “certified programs” or “state programs,” that distribute equipment in each state, plus the District of Columbia, Puerto Rico, and the U.S. Virgin Islands. See Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Section 105, Relay Services for Deaf-Blind Individuals, Report and Order, published at 76 FR 26641, May 9, 2011 (NDBEDP Pilot Program Order); 47 CFR 64.610 (NDBEDP pilot program rules). Also since 2012, a national outreach coordinator selected by the Bureau has provided extensive outreach to support the distribution efforts of these state programs. In addition, during the pilot program, the Bureau released guidance to assist state programs with how to comply with the Commission's NDBEDP rules. See, e.g., CGB, NDBEDP Frequently Asked Questions (NDBEDP FAQ); CGB, Examples of Reimbursable Expenses (July 2, 2012) (NDBEDP Expenses).

    2. The Commission released the NDBEDP 2015 NPRM seeking comment on specific requirements for the creation of a permanent NDBEDP, including its program structure, eligibility requirements, covered equipment and services, funding allocations, reporting, and other considerations. The Commission also extended the pilot program through June 2017. Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Section 105, Relay Services for Deaf-Blind Individuals, Order, published at 81 FR 36181, June 6, 2016 (2016 Extension Order).

    3. The rules adopted in document FCC 16-101 are designed to ensure that, going forward, the NDBEDP can efficiently and effectively achieve its goals of enhancing communications access for low-income individuals who are deaf-blind through the distribution of equipment and the provision of support services that are needed for the successful use of the equipment they receive. Through these rules, the Commission recognizes that the needs of each person who is deaf-blind are unique with respect to the severity and type of his or her hearing and vision loss, and that each program can best achieve Congress's goals of brining communications access into the lives of low-income individuals who are deaf-blind. At the same time, the rules contain various measures and safeguards to attain the greatest efficiencies and to prevent this program from becoming subject to fraud, waste or abuse.

    Program Structure

    4. Geographic-Based Program Certification. After careful consideration of the record, the Commission adopts a rule that retains the current structure of the NDBEDP to certify one entity for the administration of the program, distribution of equipment, and provision of related services within each state and territory covered by the NDBEDP. The Commission concludes that a local, state-based structure is most able to provide services specifically designed to address the unique needs of each state's deaf-blind residents, will be easier for consumers to access, and can facilitate coordination with other local and in-state agencies and resources. Therefore, for the permanent NDBEDP, the Commission directs the Bureau to certify one entity for each state and territory to receive funding for the administration of its program, distribution of equipment, and provision of related services to eligible residents.

    5. Expansion to Additional U.S. Territories. In the NDBEDP 2015 NPRM, the Commission proposed that NDBEDP funding be extended to the U.S. territories of American Samoa, Guam, and the Northern Mariana Islands. The Commission noted that, just like the 53 states and territories covered by the pilot program, the residents of each of these U.S. territories are also eligible to make and receive calls through one or more forms of relay services that are supported by the same TRS Fund that supports the NDBEDP. In light of the demonstrated need and record support for this proposal, the Commission extends the NDBEDP to these territories. While the Commission directs the Bureau to certify one entity for each of these territories, a single entity may apply for certification to serve the residents of one, two, or all three of these jurisdictions. The Commission notes that, given the relatively small funding allocations and uniquely small populations of these remote jurisdictions located in the South Pacific region, certifying the same entity to serve all three jurisdictions may enable the consolidation of administrative functions, as well as coordination and conservation of resources.

    6. Permanent Program Certification. In the NDBEDP 2015 NPRM, the Commission proposed that, during the 30-day period following the effective date of the final rules, each entity certified under the pilot program be required to reapply for certification or notify the Commission of its intent not to participate in the permanent NDBEDP, and to permit other entities to apply for certification.

    7. The Commission believes that expanding the pool of applicants for NDBEDP certification will enhance the quality of entities selected and will help address concerns raised by those commenters who wish to give more in-state entities an opportunity to apply for certification. While the Commission acknowledges that the experience gained by entities certified under the pilot program may weigh in favor of their recertification, it is not persuaded that experience is the only factor that should be considered when determining appropriate management for each of the states under the permanent NDBEDP. Rather, given that the next certification period will be for five years, and that the Commission now amends some of the rules that will apply to these programs, it believes it is necessary and appropriate to open up the application process to both new and currently certified entities.

    8. The Commission further concludes that its adoption of new rules for the permanent program necessitates receiving new applications from each currently certified entity interested in continuing to operate under the NDBEDP. Accordingly, the Commission will require each currently certified entity seeking to continue providing equipment and services to submit a new application with sufficient detail to demonstrate its continued ability to meet all of the Commission's certification criteria, and to affirm its commitment to comply with all Commission rules governing the permanent program. An entity seeking certification for the first time also must submit an application with sufficient detail to demonstrate its ability to meet all of the Commission's certification criteria and a commitment to comply with all Commission requirements governing the NDBEDP. An applicant may demonstrate its ability to meet all criteria for certification either directly or in coordination with other programs or entities. In reviewing each application, the Commission will consider, among other things, the extent to which a currently certified entity has effectively implemented the program and achieved compliance with the Commission's rules. The Commission believes that considerations of equity and fairness require it to adopt this approach, as it will allow the Commission to compare and contrast the qualifications of multiple applicants based on the Commission's current selection criteria and NDBEDP requirements.

    9. To ensure sufficient time is provided for the application process, the Commission requires both new and incumbent entities seeking certification under the permanent NDBEDP to apply for certification within 60 days after the effective date of the certification rules adopted in this proceeding. A 60-day application period also is consistent with the period used for the NDBEDP pilot program. In addition, the Commission requires any entity certified under the pilot program that does not wish to participate in the permanent NDBEDP to notify the Commission of such intent within 60 days after the effective date of the certification rules adopted by document FCC 16-101.

    10. The Commission directs the Bureau to announce the timing of this 60-day period by public notice. The Commission also directs the Bureau to announce, by public notice, the identity of all applicants who request certification for each state. This announcement will put existing certified programs on notice of competing applications, as well as identify those jurisdictions, if any, where no entity has applied for certification under the permanent program. The Bureau may extend the application period for those jurisdictions where no entity has applied for initial certification under the permanent NDBEDP during the 60-day period. The Commission further directs the Bureau to take appropriate steps to minimize any possible disruption of service by providing as much advance notice as possible about its selection of the entities certified under the permanent NDBEDP.

    11. Certification Selection Criteria. The Commission will continue to use the certification criteria established for the pilot program in the permanent NDBEDP. Based on the Commission's experience with the pilot program, it believes that the expertise and experience these criteria require have been effective. As further detailed below, the Commission declines to establish minimum standards for program personnel, as the Commission believes that its certification criteria and other program standards, including new requirements, will be sufficient to ensure that certified programs are effectively and efficiently managed and able to satisfy the program's goals.

    12. Program Personnel Requirements. Deaf-blind individuals are diverse with respect to their modes of communication, which can include, but are not limited to, American Sign Language, spoken English, and Braille. This population also uses a wide variety of communication technologies, including, but not limited to, refreshable Braille displays, print magnifiers, and screen readers. Given this diversity, some commenters request that minimum linguistic and other competency and training requirements be added to the Commission's certification criteria, to ensure that certified program personnel are able to meet the needs of the full spectrum of people who are deaf-blind. The Commission concludes, however, that the record does not support establishing such additional requirements for program personnel at this time because the existing criteria sufficiently serves program participants. As the record reflects, there is already a shortage of personnel who are sufficiently trained to work with people who are deaf-blind in certain parts of the country, and establishing additional, more restrictive criteria could exacerbate this issue. To the extent that effective communication for a particular individual cannot be met by in-house program personnel, certified programs may supplement such personnel by acquiring, as needed, qualified interpreter services and other accommodations. Accordingly, rather than adopt new program personnel criteria in the permanent NDBEDP, the Commission will continue permitting applicants for certification to demonstrate “[e]xpertise in the field of deaf-blindness,” 47 CFR 64.610(b)(3)(i), and “[t]he ability to communicate effectively with people who are deaf-blind,” 47 CFR 64.610(b)(3)(ii), in a variety of ways to serve the full spectrum of individuals who are deaf-blind.

    13. Administrative and Financial Management Experience. The Commission adds administrative and financial management experience to the certification criteria because it expects it will help to ensure that applicants have the necessary skills and resources to effectively operate a state's NDBEDP certified program, which in turn, will reduce the number of programs that relinquish their certifications. For example, applicants should have experience and expertise in managing programmatic funds, recordkeeping, and generally accepted accounting principles. The Commission agrees that applicants for certification should be required to demonstrate that they have access to financial expertise that allows for both the necessary cash flow and the administrative coordination to support the equipment purchase/control/inventory processes, the reimbursement process, and the annual audit, in addition to administrative expertise.

    14. Improper Incentives. Every aspect of the administration and operation of the NDBEDP must be conducted in a manner that promotes the integrity of the TRS Fund, and instils the highest public trust and confidence in the NDBEDP, the TRS Fund, and the Commission. To that end, each certified program, including its directors, officers, employees, contractors, subcontractors, consultants, agents, and all other representatives are directed to avoid any organizational or personal conflicts of interest or the appearance of a conflict of interest in all aspects of their administration and operation of the NDBEDP. The Commission adopts its proposal to require each entity seeking certification to identify and disclose to the Commission any relationship, arrangement, or agreement that potentially or actually constitutes a conflict of interest, but modifies it to require such applicants to identify and report all such potential or actual conflicts stemming from relationships, arrangements, and agreements with providers of related services, such as assessments and training, as well as equipment manufacturers. Such disclosures should be made in an entity's application for certification, including during the pendency of the application. Applicants learning of a potential or actual conflict while their applications are pending must disclose such conflicts immediately upon learning of such conflict, to prevent delays in the Commission's certification review. The Commission further clarifies that when an applicant for certification reports such an arrangement, it must also indicate the steps it will take to eliminate such an actual or potential conflict or to minimize the associated risks. If necessary, the Bureau or Commission may make its own determination as to whether the conflict requires disqualification of the entity to manage a state program or whether the entity should be required to take certain steps to eliminate the actual or potential conflict or to minimize the associated risks.

    15. Geographic Eligibility. During the pilot program, the Bureau selected entities to participate in the NDBEDP that are located both within and outside of the states that they serve. Currently, of the 53 certified programs, 33 are administered by entities located within the states they serve and 20 are administered by entities located outside those states. The Commission will maintain this flexible approach, which the record supports, for the permanent NDBEDP. The Commission agrees with commenters that certifying an out-of-state entity, which can then work with in-state partners to provide services, functions well in those states without sufficient resources of their own. While the Commission is not persuaded of the need to give preference or automatic priority to in-state entities at this time, it will consider the benefits that a local entity can bring to its own state's residents in making its certification selections, especially when weighing the merits of equally qualified applicants.

    16. Non-substantive Rule Change. In the NDBEDP 2015 NPRM, the Commission proposed a non-substantial edit that would insert the words “training consumers on” in certification criterion (v). 47 CFR 64.610(b)(3)(v). The Commission adopts this change, so that the new clause reads: “Experience in training consumers on how to use Equipment and how to set up Equipment for its effective use.”

    17. Duration of Certification. In the NDBEDP 2015 NPRM, the Commission proposed that NDBEDP programs be certified for a period of five years. The Commission believes that limiting the duration of an entity's certification provides a natural opportunity to review the entity's performance under the program and to verify that it is still qualified should it seek renewal. The Commission is also persuaded that adopting a shorter certification period would be burdensome and possibly disruptive to program participants. Therefore, the Commission adopts a five-year certification period for each state program, to start upon the effective date of the permanent NDBEDP. Such period will terminate five years after that starting date, and certification reviews and selections will occur every five years thereafter. This process has been effective for the TRS program, and the Commission expects that it will provide similar efficiencies for the NDBEDP.

    18. In the event that an entity selected at the start of a five-year term relinquishes its certification or its certification is suspended or revoked before completing its term, the Commission will permit the successor entity to complete, but not exceed, the five-year term initiated by its predecessor. The Commission notes that during the NDBEDP pilot program, certifications granted by the Bureau initially and to successor entities have varied in their duration, but they all have had a common end date—the end of the pilot program. The Commission believes that retaining a common end date in the permanent NDBEDP will facilitate the Commission's administration and oversight of the program, and help to provide certainty to the states and territories participating in this program. The Bureau may announce selections for the new certification period on a rolling basis as these are processed, but the full five-year certification period will end at the appointed time every five years.

    19. Certification Renewals. In the NDBEDP 2015 NPRM, the Commission proposed that one year prior to the expiration of each five-year certification period, each new applicant or each incumbent that has been certified to operate a state program intending to stay in the NDBEDP be required to apply for or request renewal of its certification. As the Commission concluded with respect to applications for initial certification under the permanent NDBEDP, it believes that expanding the pool of applicants during the certification renewal process beyond the incumbent entities will provide a fresh opportunity to enhance the quality of state programs. The Commission also believes that a one-year period will provide sufficient time for the renewal process, based on its experience with state renewals under the TRS program. For these reasons, the Commission adopts its proposal. The Commission further directs the Bureau to announce, by public notice, the identity of all applicants who request such certification. As with initial applications, this announcement will put existing certified programs on notice of competing applications, as well as identifying those jurisdictions, if any, where no entity has applied for a renewal or as a new entrant. The Bureau may extend the application period for those jurisdictions where no qualified entity has applied for renewal or as a new entrant. The Commission further directs the Bureau to take appropriate steps to minimize any possible disruption of service by providing as much advance notice as possible about its selection of the entities certified under the permanent NDBEDP.

    20. Prohibition on Financial Arrangements or Incentives. The Commission will continue to prohibit certified programs from entering into any financial relationship, arrangement, or agreement that creates improper incentives to purchase particular equipment. In addition, the obligation imposed on applicants for certification to disclose any actual or potential conflicts of interest with equipment manufacturers or vendors, as well as the steps the entity will take to eliminate such actual or potential conflict or to minimize the associated risks, will carry forward to entities once they have received certification under the permanent NDBEDP. The Commission requires such disclosure to be made to the Commission within 30 days after the entity learns or should have learned of such actual or potential conflict of interest. The Commission may suspend or revoke an NDBEDP certification or may require a certified entity, as a condition of continued certification, to take additional steps to eliminate, or to minimize the risks associated with, an actual or potential conflict of interest, if relationships, arrangements, or agreements affecting the entity are likely to impede its objectivity in the distribution of equipment or its ability to comply with NDBEDP requirements. This requirement will ensure that the Commission is informed of and can address expeditiously and appropriately any conflicts that come into being or are discovered after certification is granted.

    21. Obligation to Report Substantive Changes. In the NDBEDP 2015 NPRM, the Commission proposed to require each state program, once certified, to report to the Commission any substantive change within 60 days of when such change occurs. Substantive changes include those that might bear on the qualifications of the entity to meet the Commission's criteria for certification, such as changes in a program's ability to distribute equipment across its state or significant changes in its staff and facilities. In light of commenter support for this proposal and because the Commission believes that this requirement can help to ensure that programs continue to meet its criteria for certification when substantive changes occur, the Commission adopts this requirement, as modified for clarity, for a certified program to “notify the Commission within 60 days of any substantive change that bears directly on its ability to meet the qualifications necessary for certification.”

    22. Relinquishing Program Certification. In the NDBEDP 2015 NPRM, the Commission proposed to require outgoing entities to provide written notice to the Commission at least 90 days in advance of their intent to relinquish their certifications. Given commenters support for this proposal, and to minimize the risk of a lapse in service to deaf-blind individuals that might result during any future transitions from an outgoing entity to a successor entity, the Commission adopts this requirement for the permanent NDBEDP. The Commission further requires that any entity seeking to relinquish its certification include in such notice its reason for exiting the program, including its proposed departure date. The Commission believes that receiving information about the reasons for exiting the program will help inform the Commission on ways to improve the administration of the NDBEDP. Finally, the Commission requires that such notice be filed in the docket to this proceeding, so that it becomes public, and that a written copy be provided electronically to the NDBEDP Administrator and the TRS Fund Administrator.

    23. Upon receiving notice of an entity's plans to relinquish certification during the NDBEDP pilot program, the Bureau has provided a 15-day period during which it has invited applications from new entities interested in replacing the outgoing entity. Although the 15-day deadline was established to expedite replacement and ensure that all interested parties have an adequate opportunity to apply for certification, the Commission directs the Bureau to provide a minimum of 30 days for the receipt of such applications. The Commission believes that a 30-day period is reasonable, especially given its adoption of a 90-day notice requirement for any entity intending to relinquish its certification.

    24. Suspension or Revocation of Certification. Under the pilot program rules, the Commission may suspend or revoke a certification if it determines that such certification is no longer warranted after notice and opportunity for hearing. To ensure that the Commission can act expeditiously and effectively to replace a certified entity should that become necessary, the Commission retains the authority to suspend or revoke an entity's certification when it determines that an entity is no longer qualified for certification. Reasons for suspension or revocation may include, but are not limited to, failure to comply with the Commission's rules and policies, failure to take such actions as are necessary to fulfill the objectives of the program to provide access to covered services by low-income individuals who are deaf-blind (including necessary assessments, equipment distribution, and training), failure to accurately report program expenses, distribution of equipment to individuals who do not meet the program eligibility requirements, fraudulent or abusive practices, and misrepresentation or lack of candor in statements to the Commission.

    25. The Commission amends the rule, however, to provide additional clarification regarding the procedure for making a determination of suspension or revocation. First, in order to initiate the suspension or revocation of an entity's certification, the Commission must provide notice to the certified entity, which shall contain the reasons for the proposed suspension or revocation of certification and the applicable suspension or revocation procedures. The Commission will provide the certified entity 30 days to present written arguments and any relevant documentation to the Commission as to why suspension or revocation of certification is not warranted. The Commission will then review such arguments and documentation and make a determination on the merits as to whether to suspend or revoke the entity's certification, which shall include the dates by which such certification shall be suspended or terminated, as well as any conditions that may accompany a suspension. Failure of the notified entity to respond within the 30 days provided will result in automatic suspension or revocation, whichever is applicable, unless such entity seeks a waiver or extension of this period in a timely fashion, i.e., prior to the expiration of the 30-day period.

    26. Action to suspend or revoke an entity's certification may be taken either by the Commission, or the Bureau, on delegated authority. In either case, the action will be subject to the rules normally applicable to reconsideration or review of actions taken by a bureau on delegated authority or by the full Commission. See 47 CFR 1.101 through 1.117. A suspension of certification will remain in effect until the expiration date, if any, or until the fulfillment of conditions stated in a suspension decision. A revocation will be effective for the remaining portion of the current certification period, but will not preclude an entity from applying for certification for the next five-year period unless so stated in the revocation decision.

    27. These procedures are similar in some respects to those for suspension and debarment of an individual or entity receiving Universal Service Fund (USF) support. See 47 CFR 54.8. Unlike the USF suspension and debarment procedures, however, the procedures the Commission adopts for the NDBEDP do not contemplate that participation in the NDBEDP will automatically be suspended at the beginning of the suspension or revocation process. See 47 CFR 54.8(e)(1). Because an immediate suspension of an entity certified for the NDBEDP could unnecessarily interrupt the provision of equipment or related services to applicants who may have no alternative source of assistance, the determination of whether to immediately suspend an entity's participation pending completion of suspension or revocation proceedings will be made on a case-by-case basis, considering the severity of the alleged rule violations and other relevant factors. Rather, to minimize disruption, the Commission retains the pilot program provision allowing the Commission or the Bureau to take appropriate and necessary steps to ensure continuity of service for equipment applicants and recipients in the affected state. The Commission believes that these suspension and revocation procedures will satisfy due process requirements by providing the affected program with an opportunity to present objections, arguments, and documentation, will maintain some continuity of service for the affected consumers, and will ensure that the Commission can act relatively quickly to resume the effective provision of equipment and related service to consumers.

    28. Obligations of Outgoing Entities—Compliance with NDBEDP Requirements. In the NDBEDP 2015 NPRM, the Commission proposed to require entities that relinquish their certifications to comply with NDBEDP requirements needed for the ongoing functioning of the program that they are exiting, including the submission of final reimbursement claims and six-month reports. Because the Commission believes this requirement is necessary to maintain program integrity, it adopts this requirement for all outgoing entities, regardless of the reason for such entity's departure. Specifically, this obligation will apply to entities that notify the Commission of their intent not to participate under the permanent NDBEDP, reapply but are not selected for the permanent NDBEDP, do not have their certifications under the permanent NDBEDP renewed, relinquish their certifications in the middle of their term, or have their certifications revoked by the Commission. The Commission amends its rules to incorporate this requirement. The NDBEDP Administrator may allocate funds or reallocate unused funds, if necessary and available, to reimburse an outgoing entity's reasonable administrative costs to comply with these NDBEDP requirements, rather than reimbursing those costs from funds allocated or assigned to the successor entity.

    29. Obligations of Outgoing Entities—Transfer of Data and Inventory. In the NDBEDP 2015 NPRM, to minimize the impact of transitions on consumers, the Commission proposed that a certified entity that relinquishes its certification prior to completion of its term or does not seek recertification at the end of its five-year term be required to transfer NDBEDP-purchased equipment, information, files, and other data to its successor within 30 days after the effective date of the successor entity's certification. Because the Commission believes this mandate will help to ensure a smooth transition to the successor entity and reduce any potential for a lapse in service, it adopts this requirement for all outgoing entities, regardless of the reason for such entity's departure. Specifically, an outgoing certified program shall transfer to the newly-certified state program, within 30 days after the effective date of the newly-certified state program's certification, all consumer data, records, and information for the previous five years associated with the distribution of equipment and provision of related services by the outgoing certified program. In the event of a delay in the selection of a successor state program that may result in the lapse of a state program, the outgoing certified program would be required to effect such transfer after the outgoing certified program's tenure has ended. In addition, the Commission requires the transfer of all NDBEDP-purchased equipment and materials that remain in the outgoing entity's inventory (e.g., equipment purchased for distribution to consumers, for assessment and training, to be loaned to consumers during periods of equipment repair, or for any other NDBEDP purpose, but not equipment that has been distributed to individuals), along with an inventory list of all equipment and other data, records, and information pertaining to this inventory. The outgoing entity shall also report to the NDBEDP Administrator that such equipment and records have been transferred to the new entity in accordance with these requirements, after which the NDBEDP Administrator shall inform the TRS Fund Administrator that such transfer has taken place. The TRS Fund Administrator shall not make final payment to the outgoing entity until the outgoing entity has satisfied all of the requirements discussed herein. As discussed further below, the Commission further requires each certified entity—as a measure of privacy—to provide to consumers who apply for equipment a notification regarding the transfer of such data, records, and information. Specifically, each entity must inform its applicants that their personally identifiable information (PII) will be transferred to a successor in the event that the state's program is transferred to a different certified entity.

    30. Obligations of Outgoing Entities—Notification to Consumers. During the pilot program, when a state program has voluntarily relinquished its certification, the Bureau has released a public notice to invite applications for replacements, and then a second public notice to announce the successor entity. In the NDBEDP 2015 NPRM, the Commission sought comment on how best to ensure that consumers are informed when the entity certified to operate their state's NDBEDP program changes. Given the general agreement among commenters, the Commission adopts a rule requiring each outgoing certified program, regardless of the reason for the outgoing certified program's departure, to provide notification about the newly-certified state program to state residents who are either in the process of obtaining equipment or related services, or have received equipment during the previous three-year period. Such notice shall be given within 30 days of the effective date of the newly-certified state program's certification. In the event of a delay in the selection of a successor state program that may result in the lapse of a state program, the outgoing certified program may be required to provide such notification after the outgoing certified program's tenure has ended. The Commission concludes that this obligation needs to rest with the outgoing entity because it is this entity with whom consumers will have had prior contact. Such notifications must be conveyed to consumers in accessible formats (e.g., by email, in large print format mailed to the consumer's last known mailing address, by phone call, text message, or in-person, as necessary to ensure effective communication). The outgoing entity shall further report to the NDBEDP Administrator that consumers have been notified in an accessible format. The TRS Fund Administrator shall not make final payment to the outgoing entity until the outgoing entity has satisfied this requirement. In the event that the outgoing entity fails to provide such notice within the 30-day period, the Commission shall require the incoming entity to provide such notification to consumers within 30 days of when the incoming entity receives the consumer records from the outgoing entity.

    31. Implementation of the Permanent NDBEDP and Termination of the Pilot Program. Because adoption of the permanent NDBEDP rules involves new information collection requirements that are subject to approval by OMB under the PRA, the rules that are subject to the PRA will become effective on the date specified in a notice published in the Federal Register announcing OMB approval. At that time, the Bureau will announce by public notice the timing of the 60-day period for new and incumbent entities to apply for certification to participate in the permanent NDBEDP. Certifications to participate in the permanent NDBEDP will not become effective before July 1, 2017.

    32. Section 64.610(k) of the Commission's rules provides for expiration of the NDBEDP pilot program rules at the termination of the pilot program. 47 CFR 64.610(k). The Commission clarifies that the pilot program will not terminate until after all reports have been submitted, all payments and adjustments have been made, all wind-down activities have been completed, and no issues with the regard to the NDBEDP pilot program remain pending. Thus, the rules the Commission adopts in document FCC 16-101 will apply to the permanent NDBEDP only and not to the pilot program.

    Consumer Eligibility

    33. Section 719 of the Act requires the Commission to limit participation in the NDBEDP to individuals who are deaf-blind—as this term is defined by the Helen Keller National Center Act (HKNC Act)—and low income. 47 U.S.C. 620(a), (b). In this part, the Commission (1) establishes criteria to determine eligibility as an individual who is “deaf-blind” under the HKNC Act; (2) adopts rules for verifying eligibility under the definition of “deaf-blind” based on a professional's attestation or existing documentation; (3) sets low-income eligibility to not exceed 400% of the Federal Poverty Guidelines (FPG); (4) provides guidance on the calculation of income for determining low-income eligibility; (5) adopts rules for verifying low-income eligibility based on participation in other federal programs with income threshold requirements at or below 400% of the FPG or by other means for applicants who are not enrolled in a qualifying program; and (6) addresses other eligibility criteria as discussed below.

    34. Definition of Individuals who are Deaf-Blind. The HKNC Act defines an individual who is “deaf-blind” as any individual:

    (A)(i) who has a central visual acuity of 20/200 or less in the better eye with corrective lenses, or a field defect such that the peripheral diameter of visual field subtends an angular distance no greater than 20 degrees, or a progressive visual loss having a prognosis leading to one or both these conditions; (ii) who has a chronic hearing impairment so severe that most speech cannot be understood with optimum amplification, or a progressive hearing loss having a prognosis leading to this condition; and (iii) for whom the combination of impairments described in clauses (i) and (ii) cause extreme difficulty in attaining independence in daily life activities, achieving psychosocial adjustment, or obtaining a vocation;

    (B) who despite the inability to be measured accurately for hearing and vision loss due to cognitive or behavioral constraints, or both, can be determined through functional and performance assessment to have severe hearing and visual disabilities that cause extreme difficulty in attaining independence in daily life activities, achieving psychosocial adjustment, or obtaining vocational objectives; or

    (C) meets such other requirements as the Secretary [of Education] may prescribe by regulation.

    29 U.S.C. 1905(2). In the NDBEDP Pilot Program Order, the Commission interpreted the HKNC Act definitions of “deaf-blind” to allow consideration of an applicant's functional abilities to use telecommunications, Internet access, and advanced communications services in various environments. The Commission believes that this interpretation can best achieve Congress's overall goal of ensuring the accessibility of communications technologies for the deaf-blind population, and therefore retains it for purposes of defining who is eligible to receive equipment and related services under the permanent NDBEDP.

    35. The HKNC Act sets forth three independent definitions that can be used to determine whether a person is “deaf-blind.” The first definition contains three prongs that must be satisfied. 29 U.S.C. 1905(2)(A). The first of these requires an assessment of the individual's vision, and provides clear, measurable standards for loss of visual acuity, to which the Commission is bound to apply. 29 U.S.C. 1905(2)(A)(i). The first prong also includes a provision for a progressive visual loss having a prognosis leading to one or both of the vision standards described. 29 U.S.C. 1905(2)(A)(i). The second prong asks whether the individual has a hearing loss so severe “that most speech cannot be understood with optimum amplification.” 29 U.S.C. 1905(2)(A)(ii). Under the NDBEDP pilot program, the Commission has looked to this prong to allow consideration of the extent to which the individual can perceive speech over the telephone. The third prong asks whether the individual's combined vision and hearing losses “cause extreme difficulty in attaining independence in daily life activities, achieving psychosocial adjustment, or obtaining a vocation.” 29 U.S.C. 1905(2)(A)(iii). During the pilot, the Commission has construed this prong as well to permit consideration of communications-related activities, which are necessary for having independence in daily activities.

    36. The second definition contained in the HKNC Act applies to individuals for whom measurements of hearing and vision loss may be impeded due to cognitive or behavioral constraints. For these individuals, a determination of deaf-blindness may be achieved through “functional and performance assessment” that shows the individual “to have severe hearing and visual disabilities that cause extreme difficulty in attaining independence in daily life activities, achieving psychosocial adjustment, or obtaining vocational objectives.” 29 U.S.C. 1905(2)(B). The third definition is open-ended, as it permits an individual to be classified as someone who is deaf-blind if such individual meets other requirements prescribed by the Secretary of Education by regulation. 29 U.S.C. 1905(2)(C).

    37. The Commission retains for the permanent NDBEDP the definition of “deaf-blind” that has been applied in the NDBEDP pilot program. The Commission notes that this definition incorporates the first two definitional standards into the Commission's rules, but not the third, which permits the Secretary of Education to prescribe other requirements by regulation, because the Commission cannot predict whether such regulations would be appropriate for application to the NDBEDP. The Commission concludes that it has the authority to permit eligibility determinations under the NDBEDP to consider an applicant's functional abilities to use telecommunications, Internet access, and advanced communications services in various environments because it continues to believe that consideration of these abilities is in keeping with Congress's overall goal of ensuring access to such technologies by the full range of deaf-blind individuals for whom the program is intended.

    38. Verification that an Individual is Deaf-Blind. The NDBEDP pilot program rules require individuals seeking equipment under the NDBEDP to provide verification from a professional (e.g., community-based service provider, vision or hearing related professional, vocational rehabilitation counselor, educator, and medical or health professional) who has direct knowledge of that individual's disability to attest that such applicant is deaf-blind, as this term is defined in the Commission's rules. Professionals must make such attestations either to the best of their knowledge or under penalty of perjury. Such professionals may also include, in the attestation, information about the individual's functional abilities to use telecommunications, Internet access, and advanced communications services in various settings. The NDBEDP pilot program rules also specify that the professional's attestation must include the attester's name, title, and contact information, including address, phone number, and email address. Alternatively, certified programs may verify an applicant's disability by accepting documentation already in the applicant's possession, such as individualized education program documents and Social Security determination letters.

    39. The Commission will continue to require NDBEDP applicants to provide verification of their disability either by obtaining an attestation from a professional with direct knowledge of their deaf-blindness or by submitting supporting documentation already in the applicant's possession. The Commission further adopts its proposal for each professional to provide the basis for his or her attestation that an individual is deaf-blind, noting that the provision of this information will assist programs in substantiating the deaf-blind individual's equipment needs. So that the program may contact the professional if necessary, the Commission also adopts its proposal to require the attestation to include the professional's full name, title, and contact information, including business name, address, phone number, and email address.

    40. The Commission will not require each certified program to re-verify the disability eligibility of an individual who previously has been served by a program each time the recipient applies for new equipment, unless the program has reason to believe that the equipment recipient no longer has a disability sufficient to allow continued eligibility for the NDBEDP. The Commission noted that it received no comments from medical experts or other parties suggesting that subsequent disability verifications are necessary to prove a person's ongoing disability after an initial determination of such eligibility. Rather, commenters generally agree that if an individual's disability changes over time, it is far more likely to worsen rather than improve. At the same time, commenters confirm the Commission's conclusion in the NDBEDP Pilot Program Order that individuals who are deaf-blind are likely to face significant logistical challenges, including the very types of communication barriers the NDBEDP is itself designed to eliminate, in their endeavors to arrange for appointments and travel to acquire verification of their disability. The Commission concludes that the benefits of imposing such a requirement on all deaf-blind individuals do not outweigh the resulting burdens that would be imposed on such persons.

    41. The Commission's rejection of a blanket re-verification rule for all returning applicants, however, does not preclude a program from assessing, on an individual basis, the extent to which a returning applicant continues to qualify for equipment and related services, where the program has reason to believe that the visual acuity and hearing of such individual has improved sufficiently to disqualify such individual. In such instances, a certified program shall require such individual to provide an updated verification of the individual's disability status to determine the applicant's continued eligibility before providing the applicant with additional equipment or services. In addition, given record evidence that vision and hearing are likely to worsen over time, the Commission will permit any certified program to require updated information about an individual's disabilities when it deems this to be necessary to assess whether to provide the individual with different equipment or related services. This will permit certified programs to effectively respond to changes in the type and severity of an individual's disability.

    42. Income Eligibility. To participate in the NDBEDP, the deaf-blind applicant must be “low income.” 47 U.S.C. 620(a). The NDBEDP pilot program rules define low income as income that does not exceed 400% of the FPG. In the NDBEDP Pilot Program Order, the Commission selected this threshold after taking into consideration both the unusually high medical and related costs commonly associated with being deaf-blind (e.g., personal assistants, medical care, and independent living costs), and the very high costs of some SCPE used by this population.

    43. The Commission concludes that the record supports the continued application of 400% of the FPG as the income ceiling for the permanent NDBEDP, and accordingly it retains this threshold. As it did during the pilot program, the Commission will continue to use the contiguous-states-and-DC guidelines for the U.S. Territories that participate in the NDBEDP.

    44. The Commission received little comment in response to its inquiries about the relevance of the income threshold for determining eligibility under the Commission's Lifeline program and the median U.S. household income to the NDBEDP income eligibility determination. The Commission's own analysis, however, leads it to conclude that the considerations at issue for the NDBEDP are very different from those attendant to the income measures for programs such as Lifeline. Unlike individuals in the general population who can purchase off-the-shelf telephone devices at a range of prices, people who are deaf-blind often must purchase equipment that is very expensive, sometimes costing thousands of dollars. For example, during the pilot program, the average cost of NDBEDP equipment distributed to consumers was $2,632 in 2013-2014 and $2,285 in 2014-2015, and some consumers received equipment costing over $12,000 in 2013-2014 and over $10,000 in 2014-2015. In addition, as explained in the NDBEDP Pilot Program Order, the unusually high out-of-pocket medical and related costs incurred by people in the deaf-blind community puts them at risk of having to “choose between paying for medical treatment and obtaining the equipment that they need to be able to communicate.” Thus, an analogy to the Lifeline program that largely serves the general population is inapposite to the NDBEDP. For the same reason, the Commission concludes that it is not appropriate to compare the median U.S. household income with the threshold that it is setting for NDBEDP eligibility, given that the generally high expenses incurred by deaf-blind individuals keeps their disposable incomes from being similarly situated to the disposable incomes available to average U.S. households. The Commission reiterates its conclusion, made in the NDBEDP Pilot Program Order, that “[i]n order to give this program the meaning intended by Congress—`to ensure that individuals with disabilities are able to utilize fully the essential advanced technologies that have developed since the passage of the ADA and subsequent statutes addressing communications accessibility'—[the Commission] must adopt an income threshold that takes into account these unusually high medical and disability-related expenses, which significantly lower one's disposable income.” Further, the Commission notes that the hurdles of finding employment are far greater for a person who is deaf-blind than they are for members of the general public. It would defeat the very purposes of the NDBEDP to promote the independence and productivity of this population were the Commission to force these individuals to lose their program support as soon as they began using the very communications devices they received under this program to acquire earnings.

    45. Although the Commission recognizes the interest that some commenters have in raising the income threshold even further, absent authority from Congress, the Commission cannot remove the low-income limitation from the eligibility requirements to allow deaf-blind individuals who do not meet the income requirement to receive the program's benefits. Nevertheless, based on its experience with the pilot program, the record in this proceeding, and the general interest by many state programs to reach as many people with disabilities as possible, the Commission concludes that 400% of the FPG strikes the appropriate balance. Accordingly, given the goal of the CVAA “to ensure that individuals with disabilities are able to utilize fully . . . essential advanced technologies,” S. Rep. No. 111-386 at 3 (2010), and given the unusually high medical and disability-related expenses generally incurred by the covered population, it concludes that the 400% threshold originally adopted by the Commission for the pilot program is appropriate for the permanent NDBEDP.

    46. Calculation of Income. In the NDBEDP 2015 NPRM, the Commission sought comment on how income should be calculated to determine eligibility for NDBEDP applicants and specifically asked whether this should be based on the individual's “taxable income,” i.e., the amount used to compute the taxes owed by the applicant. After a careful review of this issue, the Commission declines to base eligibility on an applicant's taxable income in the permanent NDBEDP. The Commission recognizes that there is support from several commenters for this approach because it may allow additional individuals into this program. However, the Commission believes that the threshold of 400% of the FPG will sufficiently take into account the high costs of medical, disability and equipment-related expenses incurred by people with disabilities, effectively addressing Congress's dual interests in limiting this program to individuals who have lower incomes, and serving as many eligible individuals as possible. Additionally, the Commission is concerned that, as a program structured with decentralized administrative responsibilities, use of taxable income to determine eligibility would place a significant administrative burden on individual local certified programs with limited financial resources and small workforces, detracting from the program's mission. By focusing on total income, the income verification process will be simplified, consistent, and less prone to errors. Furthermore, the Commission's research failed to uncover any precedent for using taxable income to determine eligibility to participate in a federal subsidy program.

    47. The Commission, therefore, affirms the guidance initially issued by the Bureau during the pilot program, which mirrors that used by its Lifeline program, and will continue its practice of basing calculations of income for determining program eligibility on all income received by all members of a household:

    This includes salary before deductions for taxes, public assistance benefits, social security payments, pensions, unemployment compensation, veteran's benefits, inheritances, alimony, child support payments, worker's compensation benefits, gifts, lottery winnings, and the like. The only exceptions are student financial aid, military housing and cost-of-living allowances, irregular income from occasional small jobs such as baby-sitting or lawn mowing and the like.

    NDBEDP FAQ 23; 47 CFR 54.400(f).

    48. During the NDBEDP pilot program, in guidance provided to the certified programs, the Bureau explained that an applicant's “income” includes all income received by all members of an applicant's “household.” NDBEDP FAQ 23. This Bureau guidance went on to define a “household” as:

    . . . any individual or group of individuals who are living together at the same address as one economic unit. A household may include related and unrelated persons. An “economic unit” consists of all adult individuals contributing to and sharing in the income and expenses of a household. An adult is any person eighteen years or older. If an adult has no or minimal income, and lives with someone who provides financial support to him/her, both people shall be considered part of the same household. Children under the age of eighteen living with their parents or guardians are considered to be part of the same household as their parents or guardians. NDBEDP FAQ 24; 47 CFR 54.400(h).

    49. In the NDBEDP 2015 NPRM, the Commission proposed to clarify that multiple adults living together as roommates or in a multi-person home are not an “economic unit” and therefore not a “household” for purposes of determining income eligibility pursuant to the Bureau's guidance. Similarly, the Commission proposed to make clear that where an adult applicant lives in a multi-person home but does not have access to the financial resources of other individuals living in that household, the income of such individuals should not be included in the applicant's income determination. Commenters generally support this clarification, to ensure that otherwise qualified applicants are not harmed due to household arrangements. The Commission agrees that, where an applicant lives in a multi-person home but does not have access to the financial resources of others, such applicant is maintaining a financially distinct identity despite the shared living space. In this instance, the Commission concludes that combining the applicant's income and expenses with those of others in the household for purposes of determining the applicant's income eligibility could unfairly disqualify such applicant from the NDBEDP. Accordingly, the Commission clarifies that an applicant's income will not include the income of other adults in a household if such adults do not contribute to and share in the income and expenses of the household. By contrast, when an applicant benefits from the income contributions of other household members, the Commission continues to believe that it is appropriate and necessary to consider such contributions in determining NDBEDP eligibility. For example, when an applicant is financially dependent upon others in a household, or has income that is intertwined with those of another household member (as with a spouse), the applicant benefits from such financial resources, and therefore the individuals contributing to these shared funds will be considered part of the economic unit for purposes of his or her income determination.

    50. Verification of Income Eligibility. The NDBEDP pilot program rules provide that applicants who provide evidence of enrollment in federal or state subsidy programs that require income thresholds lower than 400% of the FPG will automatically be deemed to be “low income” under the NDBEDP without submitting further verification. Based on support in the record and its experience with the pilot program, the Commission concludes that this approach is reasonable and reliable, simplifies the income verification process for applicants and certified programs, imposes little burden and expense, and is consistent with the approach adopted for the Commission's Lifeline program. Thus, the Commission will retain this provision under the permanent NDBEDP. In addition, consistent with the Commission's rules governing the Lifeline program, in order to prove participation in one of these programs, an NDBEDP applicant may submit a current or prior year statement of benefits, a notice or letter of participation, program participation documents, or official documents demonstrating that the applicant receives benefits from a qualifying assistance program.

    51. To promote consistency across the NDBEDP and Lifeline programs and increase efficiency, the Commission will also modify the list of examples of federal assistance programs that applicants may use to automatically establish eligibility to participate in the NDBEDP to mirror a recently revised list of federal assistance programs used to establish eligibility for the Lifeline program. Under these revised requirements, applicants who receive benefits from certain federal assistance programs—Federal Public Housing Assistance, Supplemental Nutrition Assistance Program, Medicaid, Supplemental Security Income, or Veterans and Survivors Pension Benefit—are deemed income eligible for enrollment in the Lifeline program. The NDBEDP Administrator also may identify state or other federal programs with income eligibility thresholds that do not exceed 400% of the FPG for determining income eligibility for participation in the NDBEDP.

    52. For applicants who are not enrolled in a qualifying program, the Commission will continue to require certified programs to verify low-income eligibility by using appropriate and reasonable means. Consistent with the Commission's Lifeline program rules, the following documentation may be used to prove income eligibility:

    the prior year's state, federal, or Tribal tax return; current income statement from an employer or paycheck stub; a Social Security statement of benefits; a Veterans Administration statement of benefits; a retirement/pension statement of benefits; an unemployment/Workers' Compensation statement of benefit; federal or Tribal notice letter of participation in General Assistance; or a divorce decree, child support award, or other official document containing income information. 47 CFR 54.410(b)(1)(i)(B). Also consistent with the Lifeline program rules, if the documentation presented does not cover a full year, such as current pay stubs, the applicant must present the same type of documentation covering three consecutive months within the previous twelve months. The Commission directs the Bureau to assess whether any new forms developed for applicants to establish identity and eligibility for the Lifeline program would be appropriate for applicants to submit data to establish income eligibility to participate in the NDBEDP, and to update the guidance the Bureau provides to certified programs with respect to income eligibility documentation, as needed.

    53. In the NDBEDP 2015 NPRM, the Commission sought comment on requiring a third party to verify an applicant's income. The Commission declines to adopt this requirement at this time. The Commission is persuaded by commenters that the burdens that such verification would impose upon certified programs, as well as the likely delay in processing applications, are not outweighed by the benefits of imposing this requirement. Because certified programs under the NDBEDP have been allocated a limited amount of funds, the Commission believes that their incentives largely are to extend their dollars to as many qualifying deaf-blind state residents as possible, rather than to approve ineligible applicants. Nor is there any evidence in the record to suggest that NDBEDP certified programs have not been effective in verifying their applicants' incomes, which might justify using a third-party verifier. As such, the Commission finds that requiring certified programs to individually verify income eligibility is an appropriate method to accomplish income verification for this program at this time. However, the Commission will continue to monitor certified program operations to evaluate the need for a third party to verify applicant eligibility in the future.

    54. Finally, in the NDBEDP 2015 NPRM, the Commission proposed to require certified programs to re-verify an individual's income eligibility when the individual applies for new equipment one year or more after the program last verified the individual's income. Commenters generally recognize that income does change over time and agree that re-verification of income eligibility after one year is reasonable. The Commission concurs and adopts this requirement for the permanent NDBEDP.

    55. Access to Covered Services. In the NDBEDP Pilot Program Order, the Commission recognized that giving communications equipment to individuals who are deaf-blind who do not have the service needed to use the equipment would not be an effective use of the program's limited resources. For this reason, the pilot program rules permit certified programs to require that NDBEDP equipment recipients demonstrate that they have access to the telecommunications, Internet access, or advanced communications services that the equipment is designed to use and make accessible. Access to such services may be in the form of free wireless, WiFi, or other services made available by public or private entities, such as libraries, coffee shops, local governments, or by the recipient's family, friends, neighbors, or other personal contacts. The Commission continues to believe that it makes little sense to distribute equipment to people who do not have access to the covered services they need to use it and will, therefore, retain this rule in the permanent NDBEDP.

    56. Employment. The pilot program rules prohibit certified programs from imposing employment-related eligibility requirements for individuals to participate in the program. In the NDBEDP Pilot Program Order, the Commission reasoned that requiring equipment recipients to be employed or seeking employment would be inconsistent with the purpose of the program—to expand access to covered services for individuals who are deaf-blind—and could unnecessarily exclude children, students, retirees, and senior citizens. For these reasons, the Commission will retain this rule for the permanent NDBEDP. The Commission notes as well that there is no statutory basis for such a requirement under the CVAA.

    57. Age. The NDBEDP pilot program rules have placed no restrictions on the age of equipment recipients. As the Commission noted in the NDBEDP Pilot Program Order, advocates believe that the program should serve all eligible consumers, regardless of age, and that even very young children who are deaf-blind should have the same opportunity to learn how to use information and communication technology as their peers who are not deaf-blind. The Commission continues to believe that the permanent NDBEDP should continue to serve as a program that supplements, rather than supplants, state or federal resources otherwise available to assist persons who are deaf-blind, and thus, where communications equipment needs are being met through such other available resources, those should be used as a primary source of assistance before turning to the NDBEDP. The Commission further agrees with commenters that the permanent NDBEDP should not impose mandatory age thresholds. Rather, the Commission directs certified programs to use their expertise to conduct assessments that can determine the extent to which applicants of very young ages—for example under four years of age—are developmentally capable of using the communications equipment being considered for such persons, as well as the communication services that the equipment is designed to access.

    Equipment and Related Services

    58. Equipment. As authorized by section 719 of the Act, the Commission makes TRS Fund monies available to support programs that are approved by the Commission for the distribution of SCPE designed to make telecommunications service, Internet access service, and advanced communications services, including interexchange services and advanced telecommunications and information services, collectively referred to as “covered services,” accessible to low-income people who are deaf-blind. See 47 U.S.C. 620(a). In the NDBEDP pilot program rules, the Commission determined that under this provision, reimbursement can be provided to state programs for hardware, software, and applications, whether separate or in combination, mainstream or specialized, needed by an individual who is deaf-blind to achieve access to covered services. Equipment-related expenses, including those attributable to maintenance, repairs, warranties, and maintaining an inventory of loaner equipment, as well as the costs of refurbishing and upgrading previously distributed equipment, also have been reimbursable. Programs have not been permitted to impose restrictions on the types of communications technology that a recipient may receive, disable features or functions needed to access covered services, or accept financial arrangements from a vendor that could incentivize the purchase of particular equipment. Certified programs have been allowed to lend or transfer ownership of the distributed equipment to eligible recipients, and, for consumers re-locating out of the state, programs have been required to transfer the account and any control of the consumer's distributed equipment to new state's certified program. For the reasons discussed below, the Commission adopts its tentative conclusion to retain these pilot program rules because it believes that the approach taken for the NDBEDP pilot program has been reasonable and flexible, has benefitted consumers, is authorized by section 719 of the Act, and has furthered the purpose of the CVAA.

    59. Equipment—Allowable Equipment. The Commission retains the pilot program's definition of “equipment” for purposes of determining reimbursable expenses under the permanent NDBEDP. In so doing, the Commission affirms its previous determination that mainstream or “off-the-shelf” equipment may be provided, along with specialized or assistive equipment, to eligible consumers under this program if it meets the needs of an eligible applicant. While section 719 of the Act refers specifically to “specialized customer premises equipment,” the Commission adopts a broad interpretation of this term because it finds it to be consistent with the plain language of this section and Congress's underlying intent “to help ensure that individuals with disabilities are able to fully utilize communications services and equipment.” S. Rep. at 1; H. Rep. No. 111-563 at 19 (2010) (H. Rep.). In addition, as the Commission noted in the NDBEDP Pilot Program Order, this is consistent with principles of universal design, which seek to ensure that products available to the general public are designed so that they can be used for effective communication by as wide a range of individuals as possible, including people with disabilities, regardless of their functional differences.

    60. The Commission finds sufficient authority to adopt this approach. First, the Commission notes that, under the plain language of the statute, the Commission is permitted to give funding to “programs” that distribute SCPE. Accordingly, as in the NDBEDP Pilot Program Order, the Commission concludes that it is reasonable to interpret the statute as authorizing the funding of a program's provision of off-the-shelf equipment and services, where reasonably necessary to enable deaf-blind individuals to “utilize fully the essential advanced technologies that have developed since the passing of the Americans with Disabilities Act and subsequent statutes addressing communications accessibility.” S. Rep. at 3. As the Commission explained in the NDBEDP Pilot Program Order, some mainstream equipment, alone or packaged in combination with specialized software or hardware, may effectively and cost-efficiently meet the needs of some individuals who are deaf-blind. In addition, such equipment is often easier to procure and to support than CPE that is designed for use solely by people with disabilities. The Commission further concludes that the underlying purpose of section 719 of the Act is well served by permitting the distribution of mainstream equipment and the provision of software that serve the same purpose as equipment designed for use solely by people with disabilities, when such mainstream equipment may be more cost-effective and easier to procure and support. Especially in light of the statutory limitation of funding to $10 million annually, an interpretation of section 719 of the Act that limits funding to the distribution of a narrow category of CPE and that does not permit reimbursement of the provision of functionally equivalent mainstream equipment and software with equivalent functions would patently frustrate the purpose of this provision by precluding programs from using less expensive approaches to serving their clients. Moreover, a very strict construction of this term might prevent the Commission from supporting the distribution of non-SCPE devices that have built-in SCPE features (e.g., magnification software). The Commission expects that the interpretation it adopts will instead expand the number of consumers who are able to be served with such limited allocations of funding.

    61. The Commission also notes that recent developments have brought many types of mainstream equipment within the Commission's current definitions of SCPE. Because SCPE is not defined in section 719 (or elsewhere in the Act), the Commission finds that it is reasonable to define this term consistently with the existing definitions of SCPE in the Commission's rules. Specifically, in parts 6, 7, and 14 of the Commission's rules, SCPE is defined, in relevant part, as “equipment employed on the premises of a person,” “which is commonly used by individuals with disabilities to achieve access” to telecommunications service, Internet access service, or advanced communications services. 47 CFR 6.3(i), 7.3(i), 14.10(f), (u). Over the past few years, obligations contained in sections 255, 716, and 718 of the Act—which have, with certain limitations, directed the inclusion of accessibility features in off-the-shelf products and services used with telecommunications and advanced communications services, respectively—have resulted in a greater number of mainstream communications devices being designed to be accessible to people with disabilities—including people who are deaf-blind. 47 U.S.C. 255, 617, 619. As a consequence, such off-the-shelf devices are now more “commonly used” by people who are deaf-blind to access services under section 719 of the Act—i.e., access features that are now built into these devices have, to some extent, eliminated the need for some deaf-blind individuals to obtain adjunct or “specialized” devices in order to use products that are also used by the general population. Such accessible mainstream devices, then, could be said to be one type of SCPE that are designed to make covered services accessible by low-income individuals who are deaf-blind under section 719 of the Act.

    62. The Commission agrees with commenters who support maintaining the flexibility given to certified programs to determine the types of qualifying equipment most appropriate for their eligible residents. In the permanent NDBEDP, the Commission will continue to allow programs to seek reimbursement for the reasonable costs of equipment best tailored to the needs of their residents, up to each certified program's annual funding allocation. While some individuals use American Sign Language or tactile methods of communication, others use spoken English or Braille, and still others use a combination of various communications methods. Consequently, one individual may need a large screen together with magnification software to read large print, another might need a videophone or iPad to make video calls, another might need a refreshable Braille display, and others might need a mix of off-the-shelf and assistive devices. Flexibility is key to ensuring that individuals are accommodated effectively under this program.

    63. Commenters support, and the Commission agrees, that certified programs should continue to have the discretion to distribute one or multiple pieces of equipment, as may be necessary to achieve access to more than one type of covered communications service or to achieve such access in more than one setting. Allowing programs to determine which technology best fits each applicant, and when, is necessary to achieve Congress's purpose to bring the benefits of communications technologies to the intended population.

    64. For these same reasons, the Commission will continue to prohibit certified programs from imposing restrictions on specific brands, models or types of communications technology that recipients may receive to access covered services, and from disabling features or functions needed to access covered services. Further, as the Commission noted in the NDBEDP Pilot Program Order, “[c]ertified programs must not be limited by state statute or otherwise to distribute equipment to make only some communications accessible; certified programs must be permitted to distribute equipment to enable deaf-blind individuals to access the full spectrum of communication options covered under section 719 of the Act, as needed by those individuals.” The Commission believes that this requirement has helped to ensure consumer choice and access to the full spectrum of NDBEDP-covered services during the pilot program. The Commission stresses, however, that reimbursable equipment must be needed by the specific applicant who is deaf-blind to achieve access to covered services. As explained in the NDBEDP 2015 NPRM, the same piece of equipment may be suitable for one individual, yet inappropriate for another. Further, equipment that does not enable access to covered services cannot be funded by the NDBEDP. The Commission will continue to rely on the expertise of certified program personnel to conduct individual needs assessments to determine the equipment most suited to meet each consumer's unique communication needs. Because of the associated administrative burdens and commenters' desire for parity among certified programs, the Commission declines to permit certified programs the discretion to allow consumers to pay certified programs the difference in cost to upgrade equipment distributed by the program. To aid reimbursement certainty, the Commission will continue to allow certified programs to consult with the NDBEDP Administrator about whether a particular piece of equipment specified for an applicant is reimbursable before purchasing it.

    65. Equipment—Equipment-Related Expenses. Under the NDBEDP pilot program, the Commission also has reimbursed certified programs for the reasonable costs of equipment-related expenses, including the costs associated with equipment maintenance, repairs, warranties, equipment refurbishments and upgrades, and the costs of having state programs maintain inventories of loaner equipment. The Commission will continue to reimburse certified programs for the reasonable costs of these equipment-related expenses in the permanent NDBEDP. As the Commission explained in the NDBEDP Pilot Program Order, because some specialized devices (e.g., refreshable Braille displays) require frequent maintenance and are expensive to repair, the “reasonable costs associated with equipment maintenance and repairs that are not covered under warranties are eligible for reimbursement” as “necessary components of an effective NDBEDP.” Further, the Commission will continue to recommend that certified programs provide consumers with the means to return equipment to their certified program, particularly devices or other hardware that the consumer no longer needs or uses, for possible refurbishing and redistribution. To keep current with changes in technology and individual needs, the Commission continues to see merit in reimbursing certified programs for the reasonable costs of equipment refurbishments and upgrades, to ensure consumers have up-to-date equipment. Finally, to help ensure accessible communications in the event that equipment is in need of repair, the Commission continues to encourage certified programs to maintain an inventory of equipment for loan to consumers. In addition, during the pilot program, the Commission has permitted certified programs to use their inventories of loaner equipment for other purposes, including the performance of individual assessments. The Commission agrees that consumers benefit and assessment outcomes improve when consumers are able to experience, interact with, and try out different technologies and equipment, and for this reason, the Commission includes a provision in the permanent NDBEDP rules to make clear that loaner equipment in inventories may be used for this purpose.

    66. Equipment—Cost Efficiencies and Reassessments. Commenters confirm that significant changes in hearing, vision, or medical status may trigger the need for reassessment and new equipment, and generally support a reassessment when such changes might affect an individual's need for communications devices. The Commission encourages equipment recipients to contact their state program when they experience a significant change in their hearing, vision, or other functions that interferes with their ability to use the equipment provided by the program. The Commission further directs certified programs, upon learning of such changes, to reassess the communications needs of individuals to determine whether the equipment provided continues to meet the recipient's needs or new or additional equipment is needed. The Commission also directs CGB and the NDBEDP Administrator to monitor equipment costs and provide such additional guidance as may be appropriate to the certified programs to improve the cost efficiencies of their equipment purchases. Given the large range of devices needed to meet the unique needs of the individuals served by the NDBEDP, as well as the wide geographic range of this program, the Commission agrees that certified programs need the flexibility to purchase equipment from a variety of vendors, including local vendors who may have experience working with consumers who are deaf-blind or offer local service and maintenance options.

    67. Equipment—Reimbursement Claim Documentation. Under the pilot program, the Commission has required the following of each certified program: (1) To submit documentation to support claims for reimbursement for equipment and related expenses, and (2) when it has not been obvious that the equipment distributed can be or is commonly used by individuals who are deaf-blind to access covered services (and, therefore, it is not obvious that the equipment qualifies for reimbursement), to submit supplementary documentation upon request by the NDBEDP Administrator or the TRS Fund Administrator. The Commission's experience during the pilot program has confirmed that these requirements effectively serve to safeguard the TRS Fund while ensuring recipients receive the equipment they need, and thus, the Commission will retain these for the permanent NDBEDP.

    68. Equipment—Discretion for Programs to Lend or Transfer Ownership of Equipment. During the NDBEDP pilot program, certified programs have been allowed to lend or transfer ownership of equipment to eligible NDBEDP recipients. The Commission concludes that the term “distribute” used in section 719 of the Act is broad enough to encompass both lending and transfer of ownership. Further, the Commission has found that consumers have been served well both by programs that lend equipment and by those that transfer ownership of the equipment. The Commission continues to believe, as the Commission explained in the NDBEDP Pilot Program Order, that, while lending equipment might be preferable, particularly given the high cost of some specialized equipment, not permitting the transfer of equipment ownership to eligible recipients may exclude entities that are bound by state statutes to use this method of distribution from being certified to participate in the NDBEDP. For those programs that choose to lend equipment, the Commission also will continue to require that recipients be permitted to keep their devices for as long as needed.

    69. The pilot program rules also have required certified programs to prohibit recipients from transferring equipment received under the NDBEDP to another person through sale or otherwise. Given that the NDBEDP is a federal program with limited resources, and there is support for this prohibition in the record, the Commission will retain it for the permanent NDBEDP.

    70. Equipment—Notice to Equipment Applicants. In the NDBEDP 2015 NPRM, the Commission also sought comment on the need for a uniform attestation that would, among other things, notify each applicant about the prohibition against transferring equipment and request permission to allow certified programs to disclose information about the applicant, as needed, to minimize any interruption in service if that person moves to another state or a new entity takes over certification for that individual's state. The Commission concludes that inclusion of such attestation is necessary for the effective general administration, operation, and oversight of the program. Therefore, and to ensure sufficient notice about the disclosure of PII for semiannual reporting and other purposes of administration and operation of the NDBEDP, as well as the need to comply with Commission rules and the consequences of failing to do so, the Commission requires the following attestation or a substantially similar attestation on all consumer application forms:

    I certify that all information provided on this application, including information about my disability and income, is true, complete, and accurate to the best of my knowledge. I authorize program representatives to verify the information provided.

    I permit information about me to be shared with my state's current and successor program managers and representatives for the administration of the program and for the delivery of equipment and services to me. I also permit information about me to be reported to the Federal Communications Commission for the administration, operation, and oversight of the program.

    If I am accepted into the program, I agree to use program services solely for the purposes intended. I understand that I may not sell, give, or lend to another person any equipment provided to me by the program.

    If I provide any false records or fail to comply with these or other requirements or conditions of the program, program officials may end services to me immediately. Also, if I violate these or other requirements or conditions of the program on purpose, program officials may take legal action against me.

    I certify that I have read, understand, and accept these conditions to participate in iCanConnect (the National Deaf-Blind Equipment Distribution Program).

    Certified programs that learn that an individual has unlawfully obtained equipment or has unlawfully sold or transferred equipment that was purchased with NDBEDP funds have an obligation to take appropriate steps to reclaim such equipment or its worth. The Commission will permit, though does not require, certified programs to instruct equipment recipients about how to care for and safeguard the equipment they receive. Similarly, certified programs may inform equipment recipients about available warranties and service agreements accompanying the equipment, and remind recipients that because program resources are limited, the program may not be able to promptly replace equipment that has been damaged, lost, or stolen.

    71. The Commission agrees with commenters that, given the frequency with which equipment is upgraded or replaced due to changes in technology, it would be burdensome and impractical for certified programs to otherwise verify on a regular basis that the equipment continues to reside in the recipient's possession. The Commission, therefore, will not impose this requirement.

    72. Equipment—Consumer Relocations. During the NDBEDP pilot program, when an equipment recipient has relocated to another state, the Commission has required the originating certified program to transfer the consumer's account—as well as any title to and control of the distributed equipment held by the originating program—to the new state's certified program. The receiving state's program has had a corresponding requirement to accept this transfer. The Commission will retain this provision in the permanent program because it reduces the need for individuals to reapply to the NDBEDP upon relocating.

    73. Equipment—Equipment Listings. In the NDBEDP 2015 NPRM, the Commission observed that the iCanConnect Web site, which is maintained as part of the NDBEDP national outreach effort, provides general information about different kinds of equipment that may be provided, along with examples of specific communication devices commonly used by people who are deaf-blind. Based on the record and the Commission's experience during the pilot program, the Commission concludes that general information about and examples of equipment provided as part of the iCanConnect Web site serves an important purpose and should be kept up to date as part of the NDBEDP national outreach efforts. Since the release of the NDBEDP 2015 NPRM, the equipment list on the iCanConnect Web site has been updated quarterly, which the Commission believes is reasonable. The Commission does not at this time require the iCanConnect Web site to provide other functionalities, such as the ability to compare and contrast different communication devices or to comment on the equipment listed. The Commission believes that the cost to develop and maintain such features (such as moderating input from multiple sources) outweighs the potential benefits.

    74. The Commission adopts its proposal that the iCanConnect Web site contain a clear and conspicuous notice that the selection of and reimbursement for any piece of equipment distributed under the NDBEDP must be based on an individual case-by-case assessment and be consistent with the NDBEDP rules. The following notice, which currently appears on the iCanConnect Web site, will satisfy this requirement:

    This page provides an overview of the types of distance communication tools the program can provide to help people with significant combined hearing and vision loss stay connected to friends and family. The appearance of a specific piece of equipment on the iCanConnect Web site does not mean that it is appropriate for every program participant. iCanConnect professionals in each state and local community will work with individual consumers to identify the equipment that addresses that person's specific need, and to be sure that the equipment selected is consistent with the FCC's rules.

    The Commission notes as well that the centralized database for the permanent NDBEDP, when established, could also be populated with information about equipment distributed by certified programs across the country. Along these lines, to the extent technologically feasible, the Commission believes that enabling certified programs to query this database to generate a list of equipment that has been provided through the NDBEDP would be helpful to their operations. Accordingly, the Commission directs the Bureau and the NDBEDP Administrator to consider including this query function in the centralized database. To the extent that such database contains information about distributed equipment, the Commission further directs inclusion of the notice specified above, pertaining to the need for individualized assessments and compliance with the Commission's rules.

    75. Assessments. Under the NDBEDP pilot program, the Commission's rules have permitted reimbursement for the reasonable costs of individualized assessments of a deaf-blind individual's communications needs by qualified assistive technology specialists. These costs have included the reasonable travel costs of state program staff and contractors who conduct assessments of applicants to support the distribution of equipment by certified programs, as well as the reasonable costs of support services, such as qualified interpreters. In the NDBEDP 2015 NPRM, the Commission tentatively concluded that individual assessments are a continued necessity, and that assessment-related travel should continue to be reimbursed.

    76. Given the Commission's experience under the pilot program and support in the record, it affirms these tentative conclusions. The Commission concludes, as it concluded in the NDBEDP Pilot Program Order, that given the wide range of hearing and vision disabilities across the deaf-blind population, individualized assessments are “necessary to ensure that the equipment provided to deaf-blind individuals effectively meets their needs,” will “reduce[ ] the incidence of equipment being abandoned (because it is a poor match to the user's needs),” and thereby will achieve efficiencies in the NDBEDP. The Commission agrees with commenters that section719 of the Act is reasonably construed to encompass the costs of assessing what equipment is needed in order to make covered services accessible to a particular individual. Such application of the statute, the Commission concludes, is necessary to ensure that the equipment provided enables deaf-blind individuals to “utilize fully . . . essential advanced technologies.” S. Rep. at 3. The Commission further concludes that allowing reimbursement for travel by assessors and support services to consumers' homes will permit assessors to consider the home environment and communications technology the consumer may already have, when assessing need.

    77. The Commission directs the NDBEDP Administrator to continue conducting qualitative reviews of all assessment and associated travel and support service costs to assess their reasonableness in light of the mandate of section 719 of the Act. The Commission instructs the NDBEDP Administrator to take the varying characteristics that are unique to each consumer, as well as the assessors' rates, travel requirements, and support services needed, and other relevant factors into consideration in making individual determinations as to the reasonableness of assessment-related costs.

    78. Installation and Training. Under the NDBEDP pilot program, the Commission has permitted reimbursement for the reasonable costs of installing NDBEDP distributed equipment and conducting individualized consumer training on how to use such equipment. The record supports continuing to allow the reasonable costs of equipment installation and consumer training, including related travel (by trainers) and support services, such as qualified interpreters. The Commission concludes, consistent with the NDBEDP Pilot Program Order, that these program features are essential to the efficient and effective distribution of equipment to people who are deaf-blind. The Commission also continues to recognize that that the amount of time it takes to train individuals who are deaf-blind on new communications equipment depends on a variety of factors, including a wide range of capabilities and experiences with communications technologies. Finally, the Commission finds no basis, at this time, for revisiting the finding in the NDBEDP Pilot Program Order that individualized consumer training through remote methods, such as online training modules or video conferencing, generally is not feasible for deaf-blind individuals.

    79. The Commission, therefore, directs the NDBEDP Administrator to continue to conduct qualitative reviews of each individual claim for reimbursement of installation, training, and associated travel and support service costs to assess their reasonableness. The Commission also instructs the NDBEDP Administrator to take relevant factors into consideration in making determinations as to the reasonableness of training-related costs, including, but not limited to, the individual's capabilities and experience with communications technologies, the forms of communication being used, the need for interpreters or other support services, and whether the consumer is being trained to use multiple devices.

    80. Center-Based Assessments and Training. Under the pilot program, the Commission has not reimbursed certified programs for travel costs that are incurred by a deaf-blind consumer who goes to an NDBEDP center, to receive a communications assessment or training. An “NDBEDP center” is one or more locations designated by the certified program that are equipped and staffed for the purpose of conducting assessments or training, or both. Given the record support, as well as the benefits and potential cost savings that can result from allowing reimbursement for consumer travel to NDBEDP centers for assessments or training, the Commission believes it is in the best interest of the permanent NDBEDP to allow reimbursement for such costs, when reasonable. As the Commission noted in the NDBEDP 2015 NPRM, a consumer may benefit from an opportunity to try out a variety of equipment at the NDBEDP center that cannot be transported to a consumer's home. In addition to this and other points made in the record, when a consumer travels to an NDBEDP center—rather than having staff or a contractor travel from the center to the consumer—the program can save costs that would have been incurred for the travel time and related expenses of NDBEDP program staff or contractors.

    81. The Commission will only permit reimbursement of the costs of having a consumer travel to an NDBEDP center, however, when these costs are first pre-approved by the certified program upon a determination that the reasonable costs of this travel would be more efficient and effective than having the assessor travel to the consumer. Factors that should go into this determination should include, among other things, the availability of local training and assessment resources, the need to try out equipment that would be too difficult to transport to the consumer's home, and the cost savings for the program. In order to permit such travel costs, state programs must have guidelines in place that are consistent with state or federal travel guidance setting reasonable limits on travel costs. Each certified program will have the further option to request pre-approval by the NDBEDP Administrator before agreeing to reimburse such costs.

    82. While the Commission expects that most travel by consumers will be in-state travel, in some cases it may be more cost effective for a consumer to cross state lines to reach the closest center. As such, in certain circumstances, it may be more cost efficient to allow reimbursement to certified programs for the reasonable costs of consumer travel to another state, particularly to an adjoining state, for assessment and training. Each certified program will be required to obtain pre-approval from the NDBEDP Administrator for any out-of-state consumer travel costs. The NDBEDP Administrator should determine the extent to which such out-of-state travel would be more cost efficient and effective than in-state travel. All claims for reimbursement of costs related to consumer travel to a location outside of the consumer's state, as well as costs related to services provided to the consumer (e.g., assessments or training) at a location outside of the consumer's state, should be submitted by the consumer's home state program.

    83. In addition, consumers should not be forced to travel to an NDBEDP center, even if it is more cost efficient to have them travel than it is for an assessor or trainer to come to their home. Instead, consumers should have the choice of traveling or not, as long as the costs of such travel are reasonable, recognizing that there may be benefits, limitations, or logistical consequences for either option, such as a longer wait time to arrange for an assessment or training.

    84. The NDBEDP Administrator will review each claim for travel reimbursement, in addition to conducting overall monitoring of travel expenses generally. The Commission believes that having the NDBEDP Administrator monitor these costs will ensure that the costs remain reasonable. The Commission further directs CGB and the NDBEDP Administrator to determine, during the fifth year of the permanent program, whether and to what extent certified programs should continue being reimbursed for the costs associated with consumer travel to an NDBEDP center beyond the fifth year of the permanent program. This assessment should consider all relevant factors, including a comparison of the costs for program personnel travel to the consumer's home versus the costs of consumer travel to an NDBEDP center, cost efficiencies, benefits, or advantages that inure to the program or to the consumer as a result of such compensation, and the availability of program funds. During the NDBEDP pilot program, programs did not use all $10 million available for this program, eliminating the need for programs to choose between reimbursing the costs of equipment and other services and features of the program, such as the costs of travel. If, in the future, a greater number of individuals participate in this program, funding may be tighter, as more consumers seek to obtain equipment. The five year review will take into consideration such competing demands on the available funding. If competing demands for program funds raise concerns about the feasibility of reimbursing these travel costs prior to the five year review, the Bureau may take steps to prioritize the use of such funding to reduce or eliminate such reimbursement, as necessary. In the absence of action by the Commission or the Bureau prior to or during the fifth year of the permanent NDBEDP to modify or terminate reimbursement for travel expenses, the Commission will continue to reimburse certified programs for the reasonable costs associated with program personnel travel and consumer travel to an NDBEDP center.

    85. Training Trainers. For the reasons discussed below, the Commission will allow certified programs to use up to 2.5% of their NDBEDP funding allocations, or approximately $250,000 annually for all certified programs, for the costs of train-the-trainer activities for the first five years of the permanent NDBEDP. Funding for this purpose will be reallocated from funding previously used for national NDBEDP outreach. The Commission directs the Bureau to determine whether and to what extent such funding should be continued beyond this point during the fifth year of the permanent program.

    86. Many individuals who are deaf-blind have had little or no prior experience with distance communications devices or the services that they access, and without training, they are not likely to be able to use the equipment they receive to effectively access communications services. At the same time, organizations representing people who are deaf-blind have often expressed concerns about the shortage of qualified trainers, especially for recipients who use Braille or American Sign Language. While acknowledging such shortage, in the NDBEDP Pilot Program Order, the Commission declined to set aside funds during the pilot program to cover the cost of teaching NDBEDP personnel how to train individuals who are deaf-blind on the use of their equipment—i.e., a “train-the-trainer” program—because of the limited funding available to the NDBEDP. Instead, the Commission encouraged certified programs to “maximize the use of limited resources through collaboration and partnerships between and among certified programs on a national or regional basis, as well as partnerships or contracts with other individuals and entities, . . . in order to locate [such] qualified individuals.” However, the Commission added that it might reconsider this decision not to fund train-the-trainer programs in the future, based on information obtained through the pilot program.

    87. Commenters report that a continuing shortage of qualified trainers has limited the timeliness, amount, and quality of training that equipment recipients have received during the NDBEDP pilot program. Further, the Commission's original expectation that the shortage of qualified trainers could be resolved through collaboration and partnerships among certified programs and other entities has not happened. Rather, the continuing shortage shows that other funding sources have not adequately addressed the problem during the pilot program. Thus, the Commission agrees with the majority of commenters that it is both appropriate and necessary at this time to allocate NDBEDP funding for train-the-trainer activities.

    88. Training Trainers—Commission Authority. A primary purpose of the CVAA is “to help ensure that individuals with disabilities are able to fully utilize communications services and equipment.” S. Rep. at 1; H. Rep. at 19. The record shows an insufficient supply of trainers to meet the existing demand. As the Commission recognized in the NDBEDP Pilot Program Order, without training on the use of the equipment they receive, recipients will not be able to effectively benefit from the NDBEDP, and the equipment will be underutilized or abandoned. The Commission thus concludes that the mandate in section 719 of the Act—for the Commission to support programs approved for the distribution of SCPE designed to make covered services accessible to low-income individuals who are deaf-blind—provides the authority for the Commission to support train-the-trainer activities. 47 U.S.C. 620. The Commission believes that this approach is consistent with the Commission's prior decision to allow funding support during the NDBEDP pilot program for assessments, equipment installation, and consumer training. Although these services are not part of the act of distributing equipment per se, in the NDBEDP Pilot Program Order, the Commission found their financial support necessary because they “are essential to the efficient and effective distribution of equipment for use by people who are deaf-blind.” Thus, the Commission concludes that funding for train-the-trainer activities is likewise a reasonable use of the Commission's authority under the CVAA and necessary to achieve its effective implementation.

    89. Training Trainers—Amount of Funding. The Commission concludes that an initial allocation of $250,000, to be reallocated from funding previously used for national NDBEDP outreach, strikes an effective balance between supporting training activities and preserving funding for the actual distribution of equipment. Accordingly, the Commission directs such allocation for the first five years of the permanent program, with a review of this amount to take place during the fifth year.

    90. Training Trainers—Training Program Structure. Given the benefits of allowing individual programs to determine the types of train-the-trainer activities they require, the Commission will permit each certified program to use up to 2.5% of their NDBEDP funding allocations, or approximately $250,000 annually for all certified programs, for train-the-trainer activities or programs as each deems appropriate. State programs may use these funds for individually state-run, regional or national programs that may be set up for such training purposes.

    91. The Commission agrees with commenters who oppose treating these expenditures as an administrative cost, contending that training trainers is an activity that benefits state residents who are deaf-blind. Further, the Commission is concerned that increasing the cap on administrative costs from 15% to 17.5% might create an incentive for certified programs to forgo train-the-trainer activities in order to apply some of the unused train-the-trainer funds toward other administrative expenses. Such action might, in turn, exacerbate the persistent shortage of qualified trainers that the funding allocation for train-the-trainer activities is intended to abate. Separate accounting of train-the-trainer activities also will facilitate program oversight and evaluation of the use of this funding. To the extent that a state does not use up its full 2.5% allocation for train-the-trainer activities, it may re-allocate the unused funding to support the distribution of equipment and provision of related services to eligible consumers. For these reasons, the Commission requires certified programs to submit requests for reimbursement for the reasonable costs of train-the-trainer activities, which may be reimbursed up to 2.5% of a program's annual allocation.

    92. Training Trainers—Training Formats. The Commission agrees with commenters that the needs of certified programs and the population they serve, along with differences in the skills and learning styles of their individual trainers, cannot be appropriately addressed without flexibility to choose from among various available training options. Therefore, the Commission will permit reimbursement for a range of train-the-trainer activities, including one-on-one on-the-job training, as well as individual, group, distance or online training activities and programs conducted by HKNC, certified programs, and other entities. The Commission further agrees that it is not appropriate for the NDBEDP to compensate equipment manufacturers or vendors for training trainers on how to use the equipment they manufacture or sell because these costs should be subsumed within the manufacturer's or vendor's costs of doing business. At the same time, the Commission understands that equipment manufacturers and vendors may be particularly well-suited to provide such training and having these entities provide training may be a cost-effective option, or in fact the only option available, given the persistent shortage of qualified trainers. For these reasons, though the Commission declines to provide reimbursement for a company's training fees, it will reimburse certified programs for their reasonable costs to obtain such training (e.g., to cover the cost of their trainee's time and travel).

    93. In response to comments filed in this proceeding, the Commission also encourages certified programs and other entities to train individuals who are deaf-blind to become qualified trainers, so that NDBEDP equipment recipients in turn can be trained by those with experience and knowledge of the equipment.

    94. Training Trainers—Fifth Year Assessment. The Commission will provide NDBEDP support for train-the-trainer efforts during the first five years of the permanent program, and directs the Bureau to monitor such efforts during this period, for the purpose of making a recommendation to the Commission during the fifth year of the NDBEDP on whether and to what extent funding should be continued beyond that time. In light of concerns about the need for ongoing training to keep pace with changes in technology, however, funding for train-the-trainer activities will be continued at this level in the absence of action by the Commission or the Bureau to modify or terminate such support beyond the fifth year of the permanent NDBEDP. In making its determination, the Bureau should consider whether train-the-trainer activities and programs, as implemented, have advanced the purpose of the statute “to help ensure that individuals with disabilities are able to fully utilize communications services and equipment.” S. Rep. at 1; H. Rep. at 19. To facilitate such assessment, the Commission directs the Bureau and the NDBEDP Administrator to consult with certified programs and other stakeholders, via public notice or by other means, to ascertain the extent to which train-the-trainer funding has mitigated the shortage of qualified trainers and improved the timeliness, amount, and quality of instruction provided to equipment recipients. The Commission believes that certified programs and other stakeholders, through these and other measures, will be in the best position, given their first-hand knowledge, to inform the Commission's assessment and determination about whether and to what extent funding for train-the-trainer activities and programs should be continued.

    95. National Outreach. Each year since the commencement of the pilot program, the Commission has set aside $500,000 of the $10 million annual NDBEDP allocation to conduct national outreach. As the Commission explained in the NDBEDP Pilot Program Order, significant initial funding for outreach was necessary to launch the pilot program, because eligible individuals needed to become informed about the availability of the program before distribution of equipment could take place. The Commission determined that use of this funding to support certified programs through national outreach efforts was an essential step to achieving the overall purpose of section 719 of the Act, i.e., to enable low-income people who are deaf-blind to get the equipment they need to have access to covered services.

    96. In 2012, the Bureau selected the Perkins School for the Blind (Perkins), which has partnered with HKNC, FableVision, Inc., and others, to be the national outreach coordinator for the NDBEDP pilot program. Their efforts resulted in, among other things, an NDBEDP Web site (www.iCanConnect.org), an active social media presence, public service announcements (PSAs), and advertisements on billboards and in magazines. Additional activities included establishing an 800 number and call center for program inquiries and referrals, producing marketing materials for use by state programs, conducting monthly conference calls among certified programs, the FCC, and the TRS Fund Administrator, and supporting state program efforts to collect and share program success stories.

    97. The Commission concludes that it continues to have sufficient authority to support outreach activities because informing individuals who are deaf-blind about the availability of equipment is an essential step needed to support program efforts to distribute such equipment. Based on the comments submitted, the Commission finds that some national outreach, overseen by the NDBEDP Administrator, continues to be needed to raise awareness about the program, educate potential applicants on the ways that broadband and other communication services can enhance their lives, and instruct them on how to apply.

    98. Given support in the record and the significant progress made in raising awareness of the NDBEDP during the pilot program, the Commission concludes that an annual allocation of $250,000 is likely to be sufficient at this time to ensure continuation of the critical components of the national outreach efforts. During the fifth year of the permanent program, the Commission directs the Bureau and the NDBEDP Administrator to determine the extent to which the allocation for national outreach efforts should be continued or adjusted, to ensure that funding allocated for the NDBEDP is used efficiently. To avoid a lapse in the provision of critical national outreach components—Web site, call center, digital marketing materials, social media, and support to state programs—funding for national outreach will continue to be available at this level beyond the fifth year of the permanent NDBEDP in the absence of action by the Commission or the Bureau to modify or terminate such support.

    99. To avoid any disruption and loss of expertise developed by the current national outreach arm of the NDBEDP, the Commission authorizes Perkins to continue conducting national outreach activities for the first five years of the permanent program. The Commission directs the Bureau, as part of its evaluation of the NDBEDP national outreach efforts during the fifth year of the permanent program, to determine whether to extend Perkins's national outreach services for another five-year period or to invite new entities, via a public notice, to submit applications to conduct these efforts.

    100. National Outreach—Targeted Marketing Efforts. Based on the comments received, the Commission concludes that national outreach efforts will be most effective at this point if they are targeted—at least in part—to reach eligible segments of the population that may be less aware of the NDBEDP, including senior citizens who may not identify as having a disability, individuals who are congenitally blind or deaf and who experience a second sensory loss later in life, ASL users, and individuals with limited English proficiency. To the extent feasible given the reduction in national outreach efforts, methods of reaching such groups could include dissemination of videos in ASL and material in languages other than English, and development of outreach channels in organizations that provide services to the aging population.

    101. National Outreach—Performance and Oversight. To evaluate the efficacy of national outreach efforts during the fifth year of the program, the Commission establishes the following three performance goals: (1) To build awareness of the iCanConnect program generally; (2) to build awareness of the iCanConnect program among certain target populations; and (3) to increase application to and utilization of the program by the intended population of low-income people who are deaf-blind. The Commission further adopts the following performance metrics to assess the effectiveness of its national outreach efforts to meet each of these goals. First, the effectiveness of efforts to increase general awareness will be measured by traffic to NDBEDP call centers, iCanConnect Web site traffic, NDBEDP application downloads, and impressions on social media. The Commission encourages certified programs to make their consumer applications available through the www.iCanConnect.org state pages to enable tracking the number of application downloads as a performance metric. Any applications provided on this site must be provided in formats that are accessible to applicants. The Commission also encourages certified programs to keep their contact information on the www.iCanConnect.org state pages up to date to enable referrals. Second, the effectiveness of efforts to increase awareness by target populations will be measured by views of ASL videos prepared by the program, views or downloads of information in languages other than English, and responses to digital marketing efforts directed to resources related to target populations. Third, to determine the extent to which its national outreach efforts increase utilization of the NDBEDP by the intended population, the Commission will measure the number of individual applicants to the program, as well as the number of individuals who successfully receive NDBEDP equipment annually. While the Commission establishes this as a performance goal at this time, it notes that changes in the number of applicants and equipment recipients may be due to a wide range of factors, one of which may be national outreach. Further, the Commission notes that in order to effectively measure its success, the Commission will need to gather reliable data through uniform reporting into a centralized database. While other metrics suggested by commenters may be potentially useful, the Commission wishes to limit the number of measures employed in order to ensure that performance measurement for this relatively small program does not become a burdensome and unwieldy process. However, the Commission directs the Bureau and the NDBEDP Administrator to adjust or modify these performance goals and metrics as may be needed going forward.

    102. During the pilot program, Perkins submitted national outreach cost data every three months for reimbursement purposes, as well as periodic reports on its national outreach efforts. Because the Commission found this information to be both timely and informative, the Commission requires that, going forward, Perkins, and any subsequent entity that may be selected by the Commission to conduct national outreach, submit cost data for reimbursement purposes every three months, and, at a minimum, a summary and analysis of national outreach activities on an annual basis, in a format that will enable the NDBEDP Administrator to monitor the costs and efficacy of its outreach activities. This data will assist the NDBEDP Administrator to determine appropriate budgets for national outreach to the extent this is warranted in the future.

    103. Local Outreach. In addition to allocating funding for national outreach, the Commission has required and reimbursed local outreach during each year of the pilot program. The Commission concludes that local outreach is needed along with national outreach due to the unique needs of each state program. In addition, local outreach can raise awareness of the NDBEDP in ways that are not always possible and among populations that are not necessarily reached using national media. The Commission, therefore, affirms its tentative conclusion to require certified programs to conduct local outreach activities reasonably calculated to inform their state residents about the NDBEDP, including the development and maintenance of their NDBEDP Web pages, and to reimburse programs for the reasonable costs of such outreach. In addition, the Commission encourages certified programs to conduct local outreach activities in languages other than English, such as Spanish, that may be prevalent in their states.

    104. The Commission continues to require local outreach materials to be fully accessible to people with disabilities, noting that certified programs, whether they are entities operated by state or local governments or privately operated, already are required to ensure accessibility under the Americans with Disabilities Act. See 42 U.S.C. 12131 through 12134, 12181 through 12189. Finally, the Commission recommends that the national outreach coordinator provide information about its outreach initiatives on the iCanConnect Web site and on monthly calls with local programs. The Commission believes this coordination will avoid duplicative efforts and consumer confusion.

    105. Local Outreach—Level of Funding. The Commission is cognizant of the geographic and demographic challenges faced by different states and recognize that it may not be advisable to treat funding for local outreach efforts with a one-size-fits-all standard. The Commission further notes that the reduction in funding for national outreach activities by 50% may affect the level of funding needed to conduct outreach activities at the local level. Alternatively, the Commission notes that because the NDBEDP has been in operation for four years, some states may not need the same levels of funding for outreach as they did when they first initiated their programs. On balance, while the Commission continues to believe that local outreach should constitute no more than 10% of a certified program's annual funding allocation, it will not mandate a hard cap at this time, but will require programs to seek permission from the NDBEDP Administrator to exceed this benchmark. The Commission directs the Bureau and the NDBEDP Administrator, in making a determination as to the reasonableness of a state's outreach expenditures, to examine the unique needs, demographics and regional conditions of each state, taking into consideration the certified program's outreach goals, metrics, and activities. Increased outreach expenditures could be considered reasonable where, for example, extra outreach is shown to be needed to reach targeted populations who have not been served in particular communities or to overcome shortcomings by prior program administrators. Recognizing that certified programs will necessarily focus on different outreach activities to reflect the unique challenges and demographic makeup of their jurisdictions, the Commission concludes that each certified program should retain the flexibility to identify the appropriate goals and metrics for determining the effectiveness of its own local outreach efforts.

    106. To maximize the availability of funds for operations of direct benefit to equipment recipients, the Commission encourages certified programs to gradually reduce the amount used for outreach as demand for the NDBEDP accelerates. The Commission further directs the Bureau and the NDBEDP Administrator to assess the level of expenditures for local outreach during the fifth year of the permanent program and periodically thereafter as part of its ongoing and regular oversight and evaluation of the NDBEDP, to determine whether this guidance should be modified to increase the efficacy and efficiencies of the NDBEDP. In conducting this assessment, the Bureau and the NDBEDP Administrator may consider, among other things, the performance goals and measures established for the NDBEDP overall, the status of national outreach efforts, actual expenditures by certified programs for local outreach, the extent to which requests to exceed funding guidelines for local outreach by certified programs have been justified, and input provided by certified programs.

    Funding

    107. Allocation of Funding. In the NDBEDP Pilot Program Order, the Commission committed to making the full amount of authorized funding, $10 million annually, available to the NDBEDP during each TRS Fund year, which begins on July 1 of each year and terminates on June 30 of the following year. Of this amount, the Commission set aside $500,000 for national outreach efforts during each year of the pilot program. The Commission divided the remaining $9.5 million among each of the 53 NDBEDP certified programs by allocating a minimum base amount of $50,000 for each state, plus an amount in proportion to each state's population. The Commission explained in the NDBEDP Pilot Program Order that it elected this funding allocation strategy for certified programs “to ensure that, to the extent possible, every certified program in the NDBEDP pilot program receives a level of support that will both provide it with the incentive to participate in the NDBEDP and permit the distribution of equipment to as many eligible residents as possible.” Under the pilot program rules, the Bureau was permitted to adjust or reallocate funding allocations to any certified program within a given Fund year, and to revise allocations for subsequent TRS Fund years, as the Bureau deemed necessary and appropriate.

    108. Initial Allocations. Based on the Commission's experience during the pilot program and the record in this proceeding, the Commission will continue to use this funding mechanism for the permanent NDBEDP with the following exceptions: (1) The Commission will set aside $250,000 annually (rather than the $500,000 allocated for the pilot program) for national outreach efforts during the first five years of the permanent program and reassess the need for continuing such funding beyond this period; and (2) the Commission will set aside an amount as may be necessary annually for the creation and maintenance of a centralized database to be used for reporting purposes and generating reimbursement claims. The remaining amount will be divided up through allocations of a minimum of $50,000 for each certified program, to which will be added individual allocations in proportion to each state's or territory's population. Based on the current populations of American Samoa, Guam, and the Northern Mariana Islands, which will be served under the permanent NDBEDP, applying this funding mechanism would result in allocating slightly more than $50,000 for each added territory, for a total of slightly more than $150,000 for all three jurisdictions. The Commission concludes that allocating this amount will not have a significant impact on the funding allocations of the other 53 certified programs, and so finds it appropriate to apply the current allocation mechanism to all jurisdictions under the permanent program.

    109. The Commission's experience with the program has shown that this mechanism has allocated sufficient funds to most states annually to meet their residents' needs and, when such allocations have not been sufficient, states have had an opportunity to obtain additional funding through the reallocation process, discussed in more detail next. Further, the Commission believes that this funding allocation mechanism has provided each certified program with the incentive and opportunity to distribute communications equipment to as many eligible residents as possible. During the first year of the pilot program, certified programs, together with national outreach activities, collectively used approximately 68% of the $10 million allocated for the NDBEDP, approximately 94% was used during the second year, and approximately 88% was used during the third year. This funding enabled equipment and related services to bring communications access to approximately 3,000 low-income deaf-blind individuals.

    110. Reallocations. The Commission further concludes that the ability to reallocate funds between certified programs mid-Fund year has helped requesting programs meet their needs and has not prevented programs with decreased funding from satisfying the needs of their constituents. During the pilot program, the NDBEDP Administrator reviewed funding data as it became available and worked with certified programs, the TRS Fund Administrator and the Bureau to reallocate funding between certified programs to maximize the use of available funding, when necessary. On some occasions, such reallocations were made at the request of state programs that realized they would be unable to spend their initial annual allocation (“voluntary” reallocations). On others, after providing notice, the NDBEDP Administrator reallocated funds from programs that were underutilizing their annual allocations, to satisfy requests from certified programs where demand for equipment and related services had exceeded their allocations (“involuntary” reallocations). Involuntary reallocations were processed by mid-May of the second and third years of the pilot program.

    111. Given the success of this approach in maximizing available funds under the NDBEDP, the Commission will continue to authorize the Bureau, as necessary, to make (1) voluntary reallocations between certified programs at any time during the Fund year and (2) involuntary reallocations when individual program performance indicates that NDBEDP funds could be more fully utilized by other certified programs. The Commission believes that this approach will continue to fulfill Congress's goal of bringing communications access to as many low-income individuals who are deaf-blind as possible. See 47 U.S.C. 620(a). All such requests for reallocations must be submitted to the NDBEDP Administrator for approval by the Bureau, in consultation with the Office of the Managing Director (OMD) and the TRS Fund Administrator. Requests must be in writing, with an explanation supporting the request. To reduce the risk of interrupted or delayed services, the Commission further directs that involuntary reallocations be made by March or April, of each Fund year, to the extent possible.

    112. The Commission will also continue the current practice of notifying and coordinating with the potentially impacted certified programs prior to making involuntary reallocations of funding, to allow programs to raise concerns or objections, and to permit time for any needed adjustments to the affected programs. As part of this process, certified programs will continue to have an opportunity to request that the NDBEDP Administrator consider increasing or decreasing the proposed change in allocation. The Commission believes that the formula used by the NDBEDP Administrator for involuntary reallocations during the pilot program—which reduced by 50% the remaining allocations of certified programs that spent less than 25% of their annual allocations during the first half of the year, and reduced by 25% the remaining allocations of programs that spent more than 25% but less than 50% of their annual allocations during the first half of the year—has worked well to meet the needs of the certified programs, and for this reason, retains this formula for the permanent program. At the same time, as the Commission previously noted, it expects that, over time, a greater number of certified programs will exhaust their initial annual funding allocation, which will consequently reduce funds available for voluntary and involuntary reallocations. The Commission will allow the NDBEDP Administrator to adjust the formula, if necessary, to account for a reduction in funds that may be available for reallocations.

    113. Under the permanent program, allowable spending for administrative costs is capped at 15% of each state's initial funding allocation, and the Commission has determined that reasonable levels of spending for train-the-trainer activities and local outreach efforts are 2.5% and 10%, respectively. To provide certainty, if a certified program's funding allocation is adjusted downwards during a Fund year, and the program already incurred these expenses prior to such reallocations, the Commission will not seek to recover reimbursed expenses that exceed allowable percentages with respect to the revised funding allocation.

    114. Prioritizing Use of Funding. In the NDBEDP 2015 NPRM, the Commission asked whether it should take measures to prioritize the use of funding in the event that demand exceeds the $10 million funding limitation and, if so, how. Although the record to date indicates annual NDBEDP expenditures as high as 94% of the $10 million annual allocation, there is no evidence of major inefficiencies or inequities in how available funding has been used. Therefore, and consistent with its conclusion that certified programs should continue to have flexibility in deciding how to spend their limited allocations of NDBEDP resources, the Commission concludes that it is premature at this time to adopt measures to prioritize the use of NDBEDP funding. Nonetheless, the Commission recognizes that the program has evolved and will continue to evolve over time. Accordingly, the Commission directs the Bureau, during the fifth year of the permanent program, to assess whether and to what extent the Commission should take additional steps to prioritize the use of funding. Because the Bureau also will be conducting assessments to determine the extent to which funding should be continued for travel, train-the-trainer activities, and outreach in the fifth year, the Commission sees this as a natural opportunity for the Bureau to also re-assess how to use program funds in light of overall program performance. The Commission further directs the Bureau to make such recommendations to the Commission as may be necessary and appropriate to maximize the efficiency and effectiveness of the program going forward, based on this review. Finally, to the extent necessary to ensure that the NDBEDP is running efficiently and effectively, the Commission directs the Bureau to conduct an overall assessment of the permanent program's performance, including its use and prioritization of funding, in the program's tenth year, and to make any recommendations to the Commission as needed to improve the program's efficiency and effectiveness.

    115. Reimbursement Mechanism. Under the NDBEDP pilot program, the Commission has reimbursed programs for the costs incurred for authorized equipment and related services, up to each certified program's initial or adjusted allocation. The Commission chose this approach—over blanket distributions to certified programs at the start of each Fund year—because it concluded that this would provide incentives for certified programs to actively locate and serve eligible participants, and would achieve greater accountability and protection against fraud, waste, and abuse.

    116. The Commission will continue to use a funding mechanism that reimburses certified programs for their allowable costs associated with equipment distribution and related services up to each certified program's initial or adjusted funding allocation under the permanent NDBEDP. The Commission believes that this will ensure that certified programs operate in a cost-efficient manner and will maintain the financial integrity of the program. The Commission understands the difficulties that some certified programs, particularly smaller ones, initially incurred when starting up their pilot programs without funding support. However, the Commission continues to believe that holding back funding until costs are incurred will incent programs to serve as many eligible participants as possible, and will ensure accountability and protection against fraud, waste, and abuse. The Commission also believes that the reimbursement approach will facilitate the reallocation of unspent funds between state programs and that reallocation could be difficult if another funding mechanism were used. To ensure that entities seeking certification have the capacity to operate successfully in a system that reimburses them for their program costs, the Commission has added administrative and financial management experience as one of the criteria for certification under the permanent program.

    117. Claim Frequency and Payment Processing. Under the NDBEDP pilot program, certified programs have been permitted to elect reimbursement monthly, quarterly, or semiannually. In the NDBEDP 2015 NPRM, the Commission proposed to continue allowing certified entities to elect one of these options upon certification and at the beginning of each Fund year. The Commission adopts this proposal for the permanent program. Continuing to permit certified programs to elect their reimbursement period will avoid imposing unnecessary administrative burdens on small programs, while allowing those programs that need more immediate reimbursement to file more often. Such elections shall be made upon receiving certification and at the beginning of each Fund year.

    118. The Commission also adopts its proposal to continue requiring reimbursement claims to be submitted within 30 days after each elected period. This timeframe is supported by the record and will prevent delays when reallocations are deemed necessary. When a certified program submits its reimbursement claim more than 30 days after the claim period ends, payment of that claim may be delayed. In addition, if a program has a pattern of failing to submit claims in a timely manner, the Commission may take other action (e.g., suspension or revocation of the program's certification). The NDBEDP Administrator may grant a reasonable extension of time to submit a reimbursement claim upon a finding of good cause when notified by a certified program about the delay, the reason(s) for the delay, the expected submission date, and the measures the certified program will take to prevent recurrent delays.

    119. Finally, as explained in the NDBEDP 2015 NPRM, the Commission expects that, when a claim is submitted with sufficient documentation and does not require further clarification, the claim will be processed within 30 days, and that claims requiring additional documentation or clarification will be processed generally within 60 days. While noting such expectation, the Commission recognizes that the NDBEDP and TRS Fund Administrators may need flexibility to alter these time frames in order to address unique issues that arise. The Commission further notes that early payment of reimbursement claims generally is not possible because payments from the TRS Fund involve schedules that are guided by principles of fiscal management and internal controls.

    120. Documentation of Reimbursement Claims. During the NDBEDP pilot program, certified programs have been required to submit documentation to support their claims for reimbursement of the reasonable costs of equipment and related expenses (including maintenance, repairs, warranties, refurbishing, upgrading, and replacing equipment distributed to consumers), assessments, equipment installation and consumer training, loaner equipment, state outreach efforts, and program administration. During the pilot program, the TRS Fund Administrator has provided certified programs with instructions, guidance, and examples of documentation needed to support reimbursement claims. The Commission will continue to require certified programs to support their reimbursement claims with documentation, a reasonably detailed explanation of incurred costs, and a declaration as to the accuracy and truthfulness of the claims they submit. This mechanism holds programs accountable.

    121. In addition to documentation routinely required, the Commission will continue to permit the NDBEDP Administrator or the TRS Fund Administrator to require programs to provide supplemental information needed to verify particular claims. The Commission concludes that the process now in place, where the TRS Fund Administrator and the NDBEDP Administrator alert certified programs about the need for additional documentation or any inconsistencies or errors, successfully has reduced the amount of reimbursement claims denied to an almost negligible amount per year. This process has resulted in the temporary suspension or withholding of a payments pending resolution of disputed matters, and denied reimbursement claims when necessary. Under current rules, any certified program is permitted to appeal the denial of a reimbursement claim to the Commission. 47 CFR 1.101 through 1.117.

    122. The Commission will allow modification to the reimbursement requirements somewhat to provide greater flexibility for the NDBEDP Administrator and the TRS Fund Administrator and to allow some easing of the documentation burden on state programs, where appropriate. The Bureau and the NDBEDP Administrator, in consultation with OMD, and the TRS Fund Administrator, may modify the claim filing instructions issued by the TRS Fund Administrator, as necessary to achieve these goals. To further address commenters' concerns about the level of detail and documentation required for reimbursement and to streamline reimbursement claim and reporting requirements, this determination will take place in conjunction with the development of the centralized database.

    123. Administrative Costs. Under the Commission's rules for the NDBEDP pilot program, certified programs have been compensated for administrative costs up to 15% of their total reimbursable costs for equipment and related services. In the NDBEDP pilot program, the Commission defined administrative costs to include reporting requirements, accounting, regular audits, oversight, and general administration.

    124. The Commission continues to believe that a 15% cap on administrative costs is reasonable for the permanent program. For clarity, the Commission defines these costs to be indirect and direct costs that do not fit into specifically designated categories, such as outreach or equipment and related services, but that are necessary for the operation of a program. For example, this could include costs for management and administrative support personnel, facilities, utilities, supplies, as well as the administration of oversight requirements, including reports, accounting and audits. Given support in the record, the Commission adopts its proposal to assess the 15% administrative cost cap against each certified program's annual funding allocation, rather than the total of its reimbursable costs for equipment and related services. In addition, the Commission notes that certified programs may petition for a waiver of the administrative cost cap rule, which the Bureau may consider consistent with the Commission's general waiver standard of a showing of good cause and a finding that particular facts make compliance with the rule inconsistent with the public interest. Grant of such a waiver would not, however, permit the program's total reimbursement to exceed its overall funding allocation. Finally, the Commission notes its expectation that the establishment of a centralized database will facilitate compliance with reporting and reimbursement claim requirements, addressing concerns about the sufficiency of the 15% cap to cover necessary administrative costs. As a number of commenters suggest, a centralized database is likely to produce administrative cost savings for programs that currently have to maintain their own, or pay for alternative databases to perform these functions. The Commission believes that all of these measures, taken together, will help to alleviate burdens that the 15% administrative cap may have imposed during the pilot program.

    Program Oversight and Reporting

    125. Overview. Under the pilot program, the NDBEDP has been overseen by an NDBEDP Administrator, a Commission official designated by CGB. Every six months, certified programs are required to report to the Commission detailed information about program activities, which is subject to review by the NDBEDP Administrator and other Commission staff in order to assess the effectiveness of the program, ensure the integrity of the TRS Fund, and inform the Commission's policymaking.

    126. As discussed below, the Commission affirms the current responsibilities of the NDBEDP Administrator. In addition, the Commission sets overarching performance goals and initial performance measures for the permanent NDBEDP to provide for the efficient assessment of the program's progress in meeting the performance goals. The Commission further directs the Bureau and the NDBEDP Administrator to, as necessary, develop more detailed elaboration of these performance measures, which shall be informed by information contained in the reports submitted by the certified programs. In addition, the Commission streamlines the NDBEDP's reporting requirements so they are consistent with the new performance measures, as well as to improve program oversight and eliminate unnecessary reporting burdens.

    127. The Commission directs the establishment of a centralized NDBEDP reporting database, to be used for reporting purposes and for the generation of reimbursement claims by programs that choose to use it for that purpose. The Commission directs the Bureau and the NDBEDP Administrator to accomplish this task in coordination with OMD and its Chief Information Officer (CIO) and, as appropriate, with certified NDBEDP programs that will use or access the database. From the $10 million available annually from the TRS Fund for the NDBEDP, the Bureau may allocate an amount necessary for the development and maintenance of the centralized database. The Bureau and the NDBEDP Administrator shall also coordinate with the appropriate Commission offices to ensure compliance with applicable privacy and security requirements. For example, the Commission currently complies with the requirements of the Privacy Act with respect to the protection of PII that the Commission receives in connection with the NDBEDP pilot program. The Commission will modify the System of Records Notice for the NDBEDP and take other measures, as necessary and appropriate, with respect to the adoption of final rules for the permanent NDBEDP and the development of the centralized database. See Privacy Act System of Records, published at 77 FR 2721, January 19, 2012 (FCC/CGB-3 NDBEDP System of Records Notice).

    128. Program Oversight Responsibilities. Designated by the Bureau, the NDBEDP Administrator has been responsible for, among other things, reviewing certification applications, allocating NDBEDP funding, reviewing reimbursement claims to determine consistency with the Commission's rules, maintaining the NDBEDP Web site, resolving stakeholder issues, and serving as the Commission's point of contact for the NDBEDP. The TRS Fund Administrator has reviewed reimbursement claims for accuracy and released funds from NDBEDP fund allocations for distributed equipment and related services, including outreach efforts.

    129. The Commission directs that the responsibilities listed above should continue to reside with the Bureau. In addition, the Commission requires the NDBEDP Administrator to coordinate with OMD regarding funding decisions. The Bureau and the NDBEDP Administrator should continue to determine annual funding allocations, including reallocations that may need to be made during a Fund year, for each of the NDBEDP-certified programs. In addition, the Commission directs that the NDBEDP Administrator should continue the practice of conducting qualitative reviews to ensure that claims for reimbursement for equipment and services are consistent with NDBEDP rules, and the TRS Fund Administrator should continue to conduct quantitative reviews to determine that the requested dollar amounts are accurate, prior to making payments to certified entities. The Commission believes that this process will continue to fulfill its objectives to meet the needs of deaf-blind consumers in accordance with its policies, comply with Government-wide financial requirements, and achieve efficiencies in the NDBEDP.

    130. In addition to delegating policy oversight of the permanent NDBEDP to the Bureau, the Commission delegates financial oversight of this program to the Managing Director and directs the Managing Director to work in coordination with the Bureau to ensure that all financial aspects of the program have adequate internal controls. These duties reasonably fall within OMD's current delegated authority to ensure that the Commission operates in accordance with federal financial statutes and guidance. Such financial oversight must be consistent with TRS Orders, rules, and Commission policies to the extent these are applicable to the NDBEDP, and OMD is required to consult with CGB on any issue that potentially could impact the availability, provision, and continuity of services under the program.

    131. Performance Goals and Measures. The NDBEDP 2015 NPRM noted that the Commission has a responsibility to ensure these funds are spent efficiently and effectively. The Commission therefore proposed the following performance goals for the NDBEDP: (1) Ensuring that the program effectively increases access to covered services for the target population; (2) ensuring that the program is administered efficiently; and (3) ensuring that the program is cost-effective. Because the Commission finds the proposed goals accurately reflect the statutory purpose and the goals and objectives stated in the Commission's strategic plan, it adopts the proposed performance goals, but revises these to combine the closely-related proposed goals 2 and 3. The revised goals are now: (1) Ensuring that the program effectively increases access to covered services by the target population; and (2) ensuring that the program is administered and implemented efficiently and cost-effectively. The Commission believes that these two goals are in harmony with each other. Specifically, to the extent that the $10 million authorized annually for the NDBEDP is spent in a manner that is maximally efficient and cost-effective, such expenditure should also maximize access to covered services for the target population.

    132. In establishing performance measures to assess progress relative to these goals, the Commission is mindful of the U.S. Government Accountability Office's (GAO) advice that performance measures for each goal “should be limited to the vital few.” GAO, Executive Guide: Effectively Implementing the Government Performance and Results Act at 25 (1996). This guidance seems especially appropriate here, given the limited funding available to the NDBEDP programs and their need to focus expenditures on program operations to the maximum extent practicable.

    133. The Commission concludes that program performance in providing effective, cost-effective, and efficient service to the target population should be measured based on a few vital metrics that may be reflected in the following data: (1) Number of clients served, broken down by new versus existing program participants, and client characteristics that are relevant to the national program's performance and costs; (2) information about the equipment distributed, including costs; (3) costs and hours consumed for assessments, training, and follow-up visits (e.g., in connection with repair or upgrade of equipment); and (4) promptness of service response. Much of the data required to support each of these measures is either relatively easy to obtain or is already being collected for reporting and reimbursement purposes. The Commission recognizes that there could be benefits as well in assessing improvements in clients' access to communications services through metrics that analyze improvements in their ability to participate in life activities, such as employment and education. However, the Commission concludes that collecting and effectively analyzing such data would prove burdensome. Observed changes in consumer behavior at completion of training may be ephemeral or subjective, and afterwards, consumers who receive equipment are under no obligation to maintain contact with the programs in which they participated. Thus, while the Commission will continue to undertake efforts to determine effective outcomes that result from successful participation in the NDBEDP through outreach and other efforts, it concludes that imposing requirements for certified programs to gather this information on a regular basis would unduly burden their limited resources under this program.

    134. The Bureau and the NDBEDP Administrator are directed to implement metric parameters based on the above guidance. In this way, measures can be “tweaked” as necessary to reflect insights gained from additional oversight experience, including insights gained in implementing the centralized reporting database. Given the size of the program, and the diversity of its recipients, program data may skew based on circumstances of particular regions or particular clients, and may require further inquiry, which prescribes against adopting formulaic metrics. The Commission therefore authorizes CGB to determine the most effective method for gathering the necessary information and weighing these metrics to evaluate program performance. The Commission expects that, at a minimum, the performance measures will serve as tools to develop recommendations for programs on how to increase cost-effectiveness, and will inform the Commission's program policy decisions. The data collected for these performance measures should also enhance the Commission's ability to develop baseline information and benchmarks for future assessments.

    135. Reporting Requirements. Under the NDBEDP pilot program reporting rules, programs have been required to report information, every six months, about the following: Equipment recipients and the individuals who attest that the recipients are deaf-blind; equipment distributed; the cost, time, and other resources allocated to related services and support (outreach, assessment, installation, training, maintenance, repair, and refurbishment of equipment); the amount of time between assessments and equipment delivery; the types of state outreach undertaken; the nature of equipment upgrades; denied equipment requests and complaints received; and the number of qualified applicants on waiting lists to receive equipment. After considering the comments received, the Commission amends its rules to set forth more generally the categories of information that must be reported, and it directs the Bureau, in consultation with the NDBEDP Administrator, OMD, the TRS Fund Administrator, and the certified programs, as appropriate, to prepare reporting instructions setting forth the specific data and items of information that are needed to assess program performance, to be provided in guidance delivered to the certified programs upon establishment of the NDBEDP database.

    136. The Commission is mindful of the need to ensure that information collection requirements do not unnecessarily burden NDBEDP programs whose resources for program administration are quite limited. The Commission further believes that its original objectives for requiring programs to report certain information under the pilot program—such as detailed information about each item of equipment distributed—have now been met. For example, detailed reporting on the particular items of equipment distributed was needed to inform the Commission about the communication equipment needs of the deaf-blind community for the permanent program. While this is important information to collect and maintain in program records—and may also be necessary for the submission of reimbursement claims—the same level of detail about every piece of equipment distributed under the pilot program may not be necessary for the permanent program, and in fact such detailed reporting could unnecessarily burden program operations without significantly aiding performance measurement or the prevention of fraud, waste, and abuse. On the other hand, certain items of information not currently reported may be needed to measure program performance.

    137. Where data must already be reported for claim reimbursement, unnecessary duplication of effort should not be required. For this purpose, below, the Commission directs the establishment of a centralized database for the submission of program data to the Commission. For example, effective upon activation of the centralized NDBEDP database, the Commission expects that a program choosing to use the database for claims reimbursement as well as semiannual reporting will not be required to enter client-specific information twice.

    138. To provide the flexibility needed to effectively assess the permanent program's performance, the Commission adopts rules for the permanent program that set forth the categories of required information. The Commission directs the Bureau to delineate the specific data points required in the instructions on data reporting and database use issued by the NDBEDP Administrator. For example, to eliminate unnecessary information collection burdens, it may not be necessary to report detailed information about each professional attesting to an individual's eligibility. While the Commission believes that such details should be retained in program records, it may be sufficient to obtain this information upon request, as needed, through the NDBEDP Administrator or TRS Fund Administrator. This approach will allow the precise information fields required in each category to be adjusted and streamlined over time, based on experience with program oversight and creation of the centralized NDBEDP database. This flexible approach will also enable adjustment of reporting requirements to harmonize with future refinement of performance metrics. For this purpose, the Commission requires reporting of information in each of the following categories, and allows the Bureau to supplement these categories as necessary to achieve the performance objectives of the program, and to prevent fraud, waste and abuse: (1) Each client's identity and other relevant characteristics; (2) information about the equipment provided, including costs; (3) the cost and time for client assessments, installation and training, and maintenance and repair; (4) information about local outreach undertaken, including costs; and (5) promptness of service. Certified programs will be required to report the specific information set forth in instructions and guidelines issued by the Bureau in each category listed above or other categories deemed necessary by the Bureau, until superseded by new reporting instructions and guidance.

    139. The Commission retains the requirement to report the identity of each individual who receives equipment because it believes this is necessary to enable correct analysis of program costs and efficacy. In addition, reporting of identity information may assist in analyzing and tracking changes that occur when one certified program is replaced by another or when a client moves to another state. In this regard, reporting of identity information may help prevent fraud, abuse, and waste (e.g., where equipment is improperly provided to the same individual by more than one state program). Given the small size of the population served, however, it may not be necessary to collect fine-grained identity data such as date of birth. The rule the Commission adopts today allows CGB and the NDBEDP Administrator to exercise flexibility in determining the level of identification detail that should be collected. Given the sensitivity involved and the heightened need for security necessitated by the collection of PII, the Commission cautions CGB and the NDBEDP Administrator to limit the level of detail of the PII collected to that needed for effective program oversight.

    140. Frequency of Reporting. The Commission believes that regular reporting is necessary to ensure that certified programs maintain and keep current NDBEDP-related data and to provide accurate snapshots of that data consistently across all certified programs for oversight and evaluation purposes. The Commission will, therefore, retain the requirement for certified programs to submit reports every six months.

    141. Report Certification. Under the NDBEDP pilot program, the Commission requires certified programs to submit a certification with each report executed by “the chief executive officer, chief financial officer, or other senior executive of the certified program, such as a director or manager, with first-hand knowledge of the accuracy and completeness of the information provided in the report.” In the NDBEDP 2015 NPRM, the Commission proposed to amend the certification as follows to clarify that the “affairs” of the certified program means the “business activities conducted pursuant to the NDBEDP”:

    I swear under penalty of perjury that I am (name and title), an officer of the above-named reporting entity, and that the entity has policies and procedures in place to ensure that recipients satisfy the NDBEDP eligibility requirements, that the entity is in compliance with the Commission's NDBEDP rules, that I have examined the foregoing reports and that all requested information has been provided, and all statements of fact are true and an accurate statement of the business activities conducted pursuant to the NDBEDP by the above-named certified program.

    The Commission adopts the continued requirement for this report certification, as amended. Likewise, the Commission makes this language change to its reimbursement claim certification, as proposed.

    142. NDBEDP Centralized Database for Reporting and Reimbursement. The Commission concludes that the benefits of a centralized database would be significant and outweigh any disadvantages. A centralized database will allow the efficient retrieval of data in a uniform format from a single system. This, in turn, will enable the Bureau, OMD, the NDBEDP Administrator and the TRS Fund Administrator to oversee the program more effectively and efficiently; analyze the performance of certified programs; detect patterns indicating potential fraud, waste, or abuse; and provide aggregate national program statistics to inform the Commission's future policy deliberations for the NDBEDP. In addition, a centralized database will improve the accuracy of reported data and prevent abuse of the program by, e.g., a single consumer applying for assistance in multiple states. State-operated databases, by their nature, cannot address these important national oversight functions. A centralized database will enable programs to avoid duplicative submission of identical data for both reimbursement and reporting purposes and may allow for more effective service to clients migrating to other states and clients that are transferred to newly certified entities. A centralized database will also permit cost savings for individual states that currently incur their own expenses to organize and submit required reports. Finally, the Commission finds no convincing evidence in the record showing that the cost incurred by programs to enter data in a centralized database would be significantly greater than the cost of reporting data in the manner currently required for the pilot program.

    143. For all of these reasons, the Commission directs the Bureau, in coordination with the NDBEDP Administrator, OMD and its CIO, to establish a centralized database for the submission of program data to the Commission. The Bureau, OMD, and its CIO are required to ensure that the database will incorporate robust privacy and data security best practices in its creation and operation. Further, the database must comply with all applicable laws and Federal government guidance on privacy and security and other applicable technology requirements such as those mandated by the Federal Information Security Management Act (FISMA) and the Privacy Act. As with other databases the Commission has created to manage its programs, this database must be developed in accordance with the National Institute of Standards and Technology (NIST) guidance for secure, encrypted methods for obtaining, transmitting, storing, and disposal of program beneficiary information and certified program information. The centralized database also must have subscriber notification procedures in the event of a breach that are compliant with Department of Homeland Security (DHS) and OMB guidance.

    144. Upon its completion, all certified programs will be required to use the centralized database to file their semiannual program reports. As further discussed below, programs will be allowed, but not required, to also use the centralized database for generating reimbursement requests, which is expected to eliminate the duplication of effort involved in filing identical data for both reimbursement and reporting purposes. The Commission also recognize that some certified programs have invested in the development of their own databases for tracking and reporting NDBEDP-related activities. To be clear, nothing in document FCC 16-101 prevents individual programs from continuing to use state-specific data bases for their own tracking purposes. The Commission only requires that the required report data be entered in a national database so that it can be effectively aggregated nationally for the essential purposes described above. Therefore, to reduce any costs that may be associated with entering data in both a state-specific and a national database, the Commission directs that the Bureau, OMD and its CIO, and the NDBEDP Administrator consider the use of tools that will allow certified programs to submit data in an aggregate manner.

    145. NDBEDP Centralized Database for Reporting and Reimbursement—Use of the Centralized Database for Reimbursement Claims. The Commission is persuaded that using the centralized database to generate reimbursement claims should be permissive. The Commission believes that both efficiency and accuracy can be enhanced when the data required for reporting and reimbursement are submitted and managed within the same system; however, it also recognizes that some programs reasonably prefer to develop reimbursement requests within an internal system that is used by the certified entity for other purposes. In order to facilitate the ability of programs to use the centralized database for both reimbursement and reporting, the Commission directs the Bureau and the NDBEDP Administrator to coordinate with OMD and its CIO, and to consult with certified programs so that the centralized database can track all of the information needed to enable reports to be generated and submitted electronically, and to generate reimbursement claims.

    146. The Commission concludes that the establishment of the centralized database does not by itself relieve certified programs of the requirements to retain records and document compliance with Commission rules. The Commission does not envision that the database will be a repository for all records that a certified program must retain or chooses to retain to demonstrate compliance with the Commission's requirements governing the NDBEDP. Certified programs will be held responsible for complying with documentation and record retention requirements but will be otherwise be free to maintain records outside the database in whatever format they deem appropriate, as long as such records are reproducible upon request from the Bureau, the NDBEDP Administrator, OMD, TRS Fund Administrator, Commission, or law enforcement.

    147. NDBEDP Centralized Database for Reporting and Reimbursement—Inclusion and Protection of PII in the Centralized Database. The Commission concludes that the inclusion of certain PII is necessary because it will assist in analyzing and tracking changes that occur when one certified program is replaced by another or when a client moves to another state, may facilitate the transfer of client information when a client moves to another state, and may help detect possible fraud, waste, and abuse. Further, the Health Insurance Portability and Accountability Act of 1996 (HIPAA) does not pose any major impediment to the inclusion of PII in the centralized database. Public Law 104-191, 100 Stat. 2548 (1996). The Commission is not a “covered entity” for purposes of HIPAA and therefore is not subject to the same HIPAA standards applicable to such entities. Rather, the Commission is a “health oversight agency,” i.e., “an agency or authority of the United States . . . that is authorized by law to oversee . . . government programs in which health information is necessary to determine eligibility or compliance.” 45 CFR 164.501. To the extent that any certified program is a “covered entity” subject to HIPAA requirements, HIPAA permits the program to “disclose protected health information to a health oversight agency for oversight activities authorized by law.” 45 CFR 164.512(d)(1). Therefore, to the extent that certified programs are subject to HIPAA, disclosure of protected health information to the Commission for purposes of administering the NDBEDP does not conflict with HIPAA. Despite this categorization, it remains ultimately the responsibility of any HIPAA covered entity to ensure that it has the proper authorization to transmit health information to another individual or entity and is in full compliance with any applicable provisions of HIPAA and other privacy laws. A certified program that is or may be a covered entity for purposes of HIPAA may seek guidance about its obligations under HIPAA from the U.S. Department of Health and Human Services, Office for Civil Rights.

    148. While the Commission will not exclude PII from the centralized database, privacy and security are key considerations that it must consider in the collection and maintenance of this information. Accordingly, the Commission directs the Bureau and the NDBEDP Administrator to limit the amount of PII collected to that needed for effective program oversight. The database administrator should be tasked with establishing procedures, protocols, and other safeguards to ensure database access is in fact restricted according to the Commission's guidelines to protect any PII in the centralized database. Additionally, the Commission requires that access to the centralized NDBEDP database be limited to authorized entities for purposes that further the effective and efficient operation and administration of the NDBEDP and compliance with the Commission's rules. The database administrator shall allow certified programs to access and use the database only for the reasons specified in this part of document FCC 16-101, and to determine whether information previously entered in the database is correct and complete. Moreover, the Commission specifically prohibits a certified program from accessing PII about clients of another certified program, except as expressly authorized by the NDBEDP Administrator, pursuant to appropriate safeguards, where necessary to ensure continuity of service to such clients or for the efficient administration of the program.

    149. The Commission concludes that all access to the centralized database should be restricted to secure means of communication and be subject to a strict password policy to help protect the security of the database. To the extent possible and appropriate, certified programs should be informed specifically about how data will be secured. As in the pilot program, the Bureau and the NDBEDP Administrator will coordinate with OMD and the CIO to ensure compliance with Government-wide statutory and regulatory guidance as to the Privacy Act of 1974, FISMA, and any other applicable privacy and security requirements.

    150. NDBEDP Centralized Database for Reporting and Reimbursement—Access to Other Programs' Data and Aggregate Data. The Commission concludes that, in general, PII and other data entered by a program should be available only to Commission staff and contractors that are charged with NDBEDP oversight responsibilities, such as the TRS Fund Administrator. In addition, such information can be obtained by personnel authorized by the specific certified program that provided the data (or its successor), pursuant to authorization procedures established by the Bureau, the NDBEDP Administrator, OMD and its CIO. In addition, the Bureau, the NDBEDP Administrator, and OMD and its CIO will determine under what circumstances and procedures certified programs may obtain access to aggregated, non-PII about other state programs or about the NDBEDP as a whole.

    151. NDBEDP Centralized Database for Reporting and Reimbursement—Database Administration. Although several commenters recommend that the Commission invite entities via a public notice to submit applications to develop and maintain the database, the Commission concludes that the complexity of the task and the sensitivity of the issues to be addressed, including matters of privacy and security, demand a more structured process for making this selection. The Commission further concludes that the centralized database should be built and operated under the direct supervision of the Commission by an entity that has demonstrated skills in the development and management of an existing system of similar scope and complexity. The Commission directs the Bureau, in coordination with the Commission's Managing Director and its CIO, the NDBEDP Administrator, and others within the Commission, as may be appropriate, to determine whether the database should be built using internal Commission resources, or via an interagency agreement, a competitive procurement, or a modification of an existing agency contract. As part of this process, the Bureau, in consultation with the NDBEDP Administrator and such Commission offices, will identify the data elements, structure of the database, and other implementation details. To ensure efficient management and effective use of NDBEDP data in response to changes that occur over time, the Commission further directs the Bureau and the NDBEDP Administrator, in conjunction with the Managing Director and CIO, to initiate or direct such modifications as needed.

    152. Audits and Record Retention. During the pilot program, certified programs have been required to engage an independent auditor to perform annual audits designed to detect and prevent fraud, waste, and abuse, to make their NDBEDP-related records available for Commission-directed review or audit, and to submit documentation, upon request, demonstrating ongoing compliance with the Commission's rules. For purposes of promoting greater transparency and accountability, the NDBEDP pilot program rules also have required certified programs to retain all records associated with the distribution of equipment and provision of related services for two years following the termination of the pilot program.

    153. The Commission will retain the requirement for certified programs to conduct annual audits in the permanent NDBEDP because the Commission concludes that annual audits are needed to ensure the fiscal integrity of the program. As the Commission proposed in the NDBEDP 2015 NPRM, and as supported in the record, the Commission clarifies that the program audit standard is comparable to that required for OMB Circular A-133 audits and not a more rigorous audit standard, such as a forensic standard. Specifically, as stated in the Bureau's 2012 guidance, the annual independent audit must include a traditional financial statement audit, as well as an audit of compliance with the NDBEDP rules that have a direct and material impact on NDBEDP expenditures and a review of internal controls established to ensure compliance with the NDBEDP rules. See NDBEDP FAQ 25. Compliance areas to be audited must include, but are not limited to, allowable costs, participant eligibility, equipment distribution, and reporting. The audit report must describe any exceptions found, such as unallowable costs, lack of participant eligibility documentation, and missing reports, and must include the certified program's view as to whether each compliance exception is material and whether any internal control deficiencies are material. If the auditor finds evidence of fraud, waste, or abuse, the auditor must take appropriate steps to discuss it with the certified program management and the Commission and report the auditor's observations as required under professional auditing standards. See NDBEDP FAQ 26.

    154. The record also supports the Commission's proposals to continue to require certified programs to submit to an audit arranged by the Commission or its delegated authorities, and for any certified program that fails to fully cooperate in a Commission-arranged audit to be subject to an automatic suspension of NDBEDP payments until it agrees to the requested audit. While the Commission has not undertaken any audits of certified programs during the pilot program, to date, it concludes that it is fiscally prudent to continue to require certified programs to submit to such audits. In addition, the Commission finds that this automatic suspension policy will promote transparency, accountability, and assure the integrity of the TRS Fund.

    155. Further, the Commission will retain the provisions in the pilot program rules requiring certified programs to document compliance with all Commission requirements governing the NDBEDP, retain all records associated with the distribution of equipment and provision of related services under the NDBEDP, including records that support reimbursement claims and reports, and, upon Commission request, to submit documentation demonstrating ongoing compliance with the Commission's rules. As proposed, the Commission clarifies that evidence that a state program may not be in compliance with those rules is not a prerequisite to such a documentation request. As the Commission noted in the NDBEDP 2015 NPRM, record retention is necessary to resolve inquiries and complaints, as well as questions about reimbursement claims or compliance with NDBEDP rules. The Commission affirms that this requirement will help to prevent and detect fraud, waste, and abuse and to ensure compliance with the NDBEDP rules. Certified programs may maintain records in whatever format they deem appropriate, as long as such records are reproducible upon request from the Bureau, the NDBEDP Administrator, OMD, the TRS Fund Administrator, Commission, or law enforcement.

    156. Finally, the Commission adopts the proposal to require record retention for five years, a period that is supported by a number of commenters and is consistent with the Commission's TRS and Lifeline rules. Extending the requirement to five years will help to ensure compliance with program requirements and enable the Commission to exercise appropriate oversight and administration of the permanent NDBEDP on an ongoing basis.

    157. Whistleblower Protections. In the NDBEDP 2015 NPRM, the Commission proposed to retain the whistleblower protections in the Commission's rules for the permanent NDBEDP. Those protections require certified programs to permit individuals to disclose to appropriate officials, known or suspected rule violations or any other activity the individual believes to be unlawful, wasteful, fraudulent, or abusive, or that could result in the improper distribution of equipment, provision of services, or billing to the TRS Fund. Certified programs must include these whistleblower protections with the information they provide about the program in any employee handbooks or manuals, on their Web sites, and in other appropriate publications. Because the Commission continues to believe that these whistleblower protections help to prevent and detect fraud, waste, and abuse, the Commission will retain these requirements for the permanent NDBEDP.

    158. Complaints. In the NDBEDP 2015 NPRM, the Commission proposed that: (1) Informal complaints containing specified information will be forwarded to the certified program for a response; (2) if the program's response does not resolve the complaint, the Commission will make its own disposition of the complaint and inform both parties; (3) if unsatisfied with the result, the complainant may file a formal complaint with the Commission; and (4) the Commission may also conduct such inquiries and proceedings as it deems necessary to enforce the NDBEDP requirements.

    159. The Commission hereby adopts the proposed complaint procedures, which are generally supported by the commenters. Under these procedures, informal complaints related to the NDBEDP will be processed by the Bureau's Disability Rights Office (DRO) complaints division and the NDBEDP Administrator. Informal complaints may be transmitted to the Commission via any reasonable means, such as by letter, fax, telephone, TTY, or email. When the Commission's Consumer Help Center is updated, informal complaints may also be transmitted online. This informal complaint process is intended to facilitate resolution of complaints between the parties whenever possible. As noted, if the consumer is not satisfied with the certified program's response and the DRO's disposition of an informal complaint, the consumer may file a formal complaint.

    Final Regulatory Flexibility Certification

    160. The Regulatory Flexibility Act (RFA) requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemaking proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” See 5 U.S.C. 605(b). The RFA generally defines “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” See 5 U.S.C. 601(6). In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. See 5 U.S.C. 601(3). A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the Small Business Administration (SBA). 15 U.S.C. 632.

    161. In 2011, pursuant to section 105 of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), which adds section 719 of the Act, as amended, 47 U.S.C. 620, the Commission established the National Deaf-Blind Equipment Distribution Program (NDBEDP) as a pilot program. Under the NDBEDP, the Commission provides up to $10 million annually from the Interstate Telecommunications Relay Service Fund (TRS Fund) to support programs approved by the Commission for the distribution of equipment designed to make telecommunications service, Internet access service, and advanced communications services (covered services) accessible to low-income individuals who are deaf-blind. 47 U.S.C. 620(a), (c). A person who is “deaf-blind” has combined vision and hearing loss, as defined in the Helen Keller National Center Act. 47 U.S.C. 620(b); 29 U.S.C. 1905(2). The Commission authorized up to 53 entities to be certified to participate in the pilot program—one entity for each state, plus the District of Columbia, Puerto Rico,

    and the U.S. Virgin Islands—collectively referred to as “certified programs” or “state programs.” Through the pilot program, thousands of low-income individuals who are deaf-blind have received equipment and training on how to use that equipment to access covered services. The Commission extended the pilot program to June 30, 2017. In document FCC 16-101, the Commission adopts rules to continue the NDBEDP as an ongoing, permanent program.

    162. In the NDBEDP 2015 NPRM, the Commission concluded that the proposed rules would not have a significant economic impact on the entities that might be affected by the proposed rules because the Commission would reimburse all of those entities for all of their NDBEDP expenses from the TRS Fund, up to their annual funding allocations. The Commission added that the changes it was proposing were of an administrative nature, intended to reduce the administrative burden on those entities, and would not have a significant economic impact on small entities. If there were to be an economic impact on small entities as a result of the proposals, however, the Commission expected the impact to be a positive one. The Commission therefore certified, pursuant to the RFA, that the proposals in the NDBEDP 2015 NPRM, if adopted, would not have a significant economic impact on a substantial number of small entities. No comments were filed in response to that Initial Regulatory Flexibility Certification.

    163. Document FCC 16-101 extends the NDBEDP to include the U.S. territories of American Samoa, Guam, and the Northern Mariana Islands. As a result, up to 56 entities may be certified to participate in the permanent NDBEDP.

    164. Document FCC 16-101 provides that current state programs and other entities that want to participate in the permanent NDBEDP must seek certification for a five-year period and every five years thereafter. If a current program wants to renew its certification or another entity wants to apply for certification, it must, one year prior to the expiration of the five-year certification period, submit an application explaining why it is eligible to participate in the NDBEDP.

    165. To help address a persistent shortage of qualified trainers to provide individualized training to consumers on how to use NDBEDP-distributed equipment, document FCC 16-101 permits certified programs to use up to 2.5% of their annual funding allocations, or approximately $250,000 annually for all certified programs, for the costs of train-the-trainer activities and programs during the first five years of the permanent program and directs the Consumer and Governmental Affairs Bureau (the Bureau) to assess the need for continuing such funding beyond this period.

    166. The NDBEDP pilot program rules require all certified programs to submit reports about their NDBEDP activities to the Commission every six months. Document FCC 16-101 finds that continuing to receive this data will be useful to the permanent program as well, because regular reporting is necessary to ensure that certified programs maintain and keep current NDBEDP-related data and to provide accurate snapshots of that data consistently across all certified programs for oversight and evaluation purposes. At the same time, document FCC 16-101 sets forth generally the categories of required information and directs the Bureau to determine the specific items of information to be reported, which the Bureau may adjust and streamline over time and in conjunction with the planning and implementation of the centralized database, which is discussed next. Streamlining reporting requirements will reduce the administrative burden of the certified programs participating in the permanent NDBEDP.

    167. In document FCC 16-101, the Commission directs the Bureau, in coordination with the appropriate Commission offices and other stakeholders, to establish a centralized database that would assist state programs to comply with the reporting and reimbursement claim requirements under the permanent NDBEDP. First, upon completion of the database, all state programs would be required to submit information about their NDBEDP-related activities into the database and use the database to generate reports for submission to the Commission every six months. Second, all state programs would be able to submit data regarding their NDBEDP-related expenses into the database and generate reimbursement claims for submission to the TRS Fund Administrator. State programs currently maintain their own databases or pay for alternative databases to perform these functions. Submission of data into a centralized database that is established and maintained by the Commission to perform these functions would likely reduce the administrative costs for these state programs. Collecting data in a uniform manner from the certified programs would also improve oversight and administration of the NDBEDP by enabling the Commission to aggregate and analyze that data.

    168. Under the Commission's rules for the NDBEDP pilot program, certified programs are compensated for 100% of their expenses, up to each program's annual allocation set by the NDBEDP Administrator, a Commission official designated by the Bureau. Within this annual allocation amount, the Commission did not establish any caps for costs associated with state and local outreach, assessments, equipment, installation, or training, but did establish a cap for administrative costs. The Commission defined administrative costs to include reporting requirements, accounting, regular audits, oversight, and general administration. Programs may be compensated for administrative costs up to 15% of their total reimbursable costs (i.e., not their total allocation) for equipment and related services actually provided. Document FCC 16-101 amends the rules to reimburse certified programs for administrative costs up to 15% of their annual allocation, regardless of the amount of equipment and related services they actually provide. Document FCC 16-101 also recognizes that during the first three years of the NDBEDP pilot program, some programs' administrative costs exceeded the allowable 15% reimbursable amount. As discussed further above, document FCC 16-101 calls for the creation of a centralized database to be used by certified programs for generating reports and reimbursement claims, which is likely to produce administrative cost savings for programs that maintain their own databases or pay for alternative databases to perform these functions. Certified programs may also petition for and the Bureau may grant a waiver of the administrative cost cap rule upon a showing of good cause and a finding that particular facts make compliance with the rule inconsistent with the public interest. These measures, taken together, may alleviate the administrative burdens for certified programs operating in the permanent NDBEDP by making it easier to operate within the 15% administrative cost cap.

    169. During each year of the pilot program, the Commission has set aside $500,000 of the $10 million available annually to perform national outreach to promote the NDBEDP. Given the significant progress in publicizing the NDBEDP during the pilot program, document FCC 16-101 continues to fund national outreach efforts, but at a reduced level of $250,000 for each of the first five years of the permanent program, and directs the Bureau to determine the extent to which national outreach efforts and funding should be continued thereafter and whether to extend Perkins's national outreach services for another five-year period or to invite entities, via a public notice, to submit applications to conduct these efforts.

    170. During the pilot program, certified programs have been required to engage an independent auditor to perform annual audits designed to detect and prevent fraud, waste, and abuse, as well as to submit to audits arranged by the Commission or its delegated authorities. Document FCC 16-101 continues those audit requirements and also requires each certified program to submit a copy of its annual audit to the NDBEDP Administrator.

    171. The Commission finds that the rules adopted in document FCC 16-101 will not have a significant economic impact on the entities that are part of the NDBEDP because the Commission will reimburse these entities for all of their NDBEDP expenses from the TRS Fund, up to their annual funding allocations. The rules adopted in document FCC 16-101 are administrative in nature, intended to reduce the administrative burden on certified programs, increase program transparency, benefit equipment recipients, improve the Commission's administration and oversight of the NDBEDP, and will not have a significant economic impact on a substantial number of small entities. To the extent that there is an economic impact on small entities as a result of the rules adopted in document FCC 16-101, the Commission believes the impact to be a positive one.

    172. The Commission therefore certifies, pursuant to the RFA, that the rules adopted in document FCC 16-101 will not have a significant economic impact on a substantial number of small entities.

    173. The Commission sent a copy of document FCC 16-101 in a report to Congress and the Governmental Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

    Ordering Clauses

    Pursuant to sections 1, 4(i), 4(j), and 719 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), and 620, document FCC 16-101 is ADOPTED and the Commission's rules are hereby AMENDED.

    Section 64.610 of the Commission's rules will remain in effect until after all reports have been submitted, all payments and adjustments have been made, all wind-down activities have been completed, and no issues with the regard to the NDBEDP pilot program remain pending.

    The Commission will send a copy of document FCC 16-101, including a copy of this final certification, to the Chief Counsel for Advocacy of the Small Business Administration.

    List of Subjects in 47 CFR Part 64

    Individuals with disabilities, Telecommunications.

    Federal Communications Commission. Marlene H. Dortch, Secretary.

    For the reasons stated in the preamble, the Federal Communications Commission amends Title 47 of the Code of Federal Regulations as follows:

    PART 64—MISCELLANEOUS RULES RELATING TO COMMON CARRIERS 1. The authority citation for part 64 continues to read as follows: Authority:

    47 U.S.C. 154, 254(k); 403(b)(2)(B), (c), Pub. L. 104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 218, 222, 225, 226, 227, 228, 254(k), 616, 620, and the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, unless otherwise noted.

    2. Add subpart GG to read as follows: Subpart GG—National Deaf-Blind Equipment Distribution Program Sec. 64.6201 [Reserved] 64.6203 [Reserved] 64.6205 [Reserved] 64.6207 Certification to receive funding. 64.6209 Eligibility criteria. 64.6211 Equipment distribution and related services. 64.6213 Payments to NDBEDP certified programs. 64.6215 Reporting requirements. 64.6217 Complaints. 64.6219 Whistleblower protections. Subpart GG—National Deaf-Blind Equipment Distribution Program
    § 64.6201 [Reserved]
    § 64.6203 [Reserved]
    § 64.6205 [Reserved]
    § 64.6207 Certification to receive funding.

    For each state, including the District of Columbia and U.S. territories, the Commission will certify a single program as the sole entity authorized to receive reimbursement for NDBEDP activities from the TRS Fund. Such entity will have full responsibility for distributing equipment and providing related services, such as outreach, assessments, installation, and training, in that state, either directly or through collaboration, partnership, or contract with other individuals or entities in-state or out-of-state, including other NDBEDP certified programs.

    (a) Eligibility for certification. Public or private entities, including, but not limited to, equipment distribution programs, vocational rehabilitation programs, assistive technology programs, schools for the deaf, blind, or deaf-blind, organizational affiliates, independent living centers, or private educational facilities, may apply to the Commission for certification.

    (b) When to apply. Applications for certification shall be filed:

    (1) Within 60 days after the effective date of this section;

    (2) At least one year prior to the expiration of a program's certification;

    (3) Within 30 days after public notice of a program's relinquishment of certification; and

    (4) If an application deadline is extended or a vacancy exists for other reasons than relinquishment or expiration of a certification, within the time period specified by public notice.

    (c) Qualifications. Applications shall contain sufficient detail to demonstrate the entity's ability to meet all criteria required for certification and a commitment to comply with all Commission requirements governing the NDBEDP. The Commission shall review applications and determine whether to grant certification based on the ability of an entity to meet the following qualifications, either directly or in coordination with other programs or entities, as evidenced in the application and any supplemental materials, including letters of recommendation:

    (1) Expertise in the field of deaf-blindness, including familiarity with the culture and etiquette of individuals who are deaf-blind;

    (2) The ability to communicate effectively with individuals who are deaf-blind (for training and other purposes), by among other things, using sign language, providing materials in Braille, ensuring that information made available online is accessible, and using other assistive technologies and methods to achieve effective communication;

    (3) Administrative and financial management experience;

    (4) Staffing and facilities sufficient to administer the program, including the ability to distribute equipment and provide related services to low-income individuals who are deaf-blind throughout the state, including those in remote areas;

    (5) Experience with the distribution of specialized customer premises equipment, especially to individuals who are deaf-blind;

    (6) Experience in training consumers on how to use Equipment and how to set up Equipment for its effective use;

    (7) Familiarity with Covered Services; and,

    (8) If the applicant is seeking renewal of certification, ability to provide Equipment and related services in compliance with this subpart.

    (d) Conflicts of interest. (1) An applicant for certification shall disclose in its application any relationship, arrangement, or agreement with a manufacturer or provider of Equipment or related services that poses an actual or potential conflict of interest, as well as the steps the applicant will take to eliminate such actual or potential conflict or to minimize the associated risks. If an applicant learns of a potential or actual conflict while its application is pending, it must immediately disclose such conflict to the Commission. The Commission may reject an application for NDBEDP certification, or may require an applicant, as a condition of certification, to take additional steps to eliminate, or to minimize the risks associated with, an actual or potential conflict of interest, if relationships, arrangements, or agreements affecting the applicant are likely to impede its objectivity in the distribution of Equipment or its ability to comply with NDBEDP requirements.

    (2) A certified entity shall disclose to the Commission any relationship, arrangement, or agreement with a manufacturer or provider of Equipment or related services that comes into being or is discovered after certification is granted and that poses an actual or potential conflict of interest, as well as the steps the entity will take to eliminate such actual or potential conflict or to minimize the associated risks, within 30 days after the entity learns or should have learned of such actual or potential conflict of interest. The Commission may suspend or revoke an NDBEDP certification or may require a certified entity, as a condition of continued certification, to take additional steps to eliminate, or to minimize the risks associated with, an actual or potential conflict of interest, if relationships, arrangements, or agreements affecting the entity are likely to impede its objectivity in the distribution of Equipment or its ability to comply with NDBEDP requirements.

    (e) Certification period. Certification granted under this section shall be for a period of five years. A program may apply for renewal of its certification by filing a new application at least one year prior to the expiration of the certification period. If a certified entity is replaced prior to the expiration of the certification period, the successor entity's certification will expire on the date that the replaced entity's certification would have expired.

    (f) Notification of substantive change. A certified program shall notify the Commission within 60 days of any substantive change that bears directly on its ability to meet the qualifications necessary for certification under paragraph (c) of this section.

    (g) Relinquishment of certification. A program wishing to relinquish its certification before its certification expires shall electronically provide written notice of its intent to do so to the NDBEDP Administrator and the TRS Fund Administrator at least 90 days in advance, explaining the reason for such relinquishment and providing its proposed departure date. After receiving such notice, the Commission shall take such steps as may be necessary, consistent with this subpart, to ensure continuity and effective oversight of the NDBEDP for the affected state.

    (h) Suspension or revocation of certification. The Commission may suspend or revoke NDBEDP certification if, after notice and an opportunity to object, the Commission determines that an entity is no longer qualified for certification. Within 30 days after being notified of a proposed suspension or revocation of certification, the reason therefor, and the applicable suspension or revocation procedures, a certified entity may present written arguments and any relevant documentation as to why suspension or revocation of certification is not warranted. Failure to respond to a notice of suspension or revocation within 30 days may result in automatic suspension or revocation of certification. A suspension of certification will remain in effect until the expiration date, if any, or until the fulfillment of conditions stated in a suspension decision. A revocation will be effective for the remaining portion of the current certification period. In the event of suspension or revocation, the Commission shall take such steps as may be necessary, consistent with this subpart, to ensure continuity and effective oversight of the NDBEDP for the affected state.

    (i) [Reserved]

    (j) Certification transitions. When a new entity is certified as a state's program, the previously certified entity shall:

    (1) Within 30 days after the new entity is certified, and as a condition precedent to receiving payment for any reimbursement claims pending as of or after the date of certification of the successor entity,

    (i) Transfer to the new entity all NDBEDP data, records, and information for the previous five years, and any Equipment remaining in inventory;

    (ii) Provide notification in accessible formats about the newly-certified state program to state residents who are in the process of obtaining Equipment or related services, or who received Equipment during the previous three-year period; and

    (iii) Inform the NDBEDP Administrator that such transfer and notification have been completed;

    (2) Submit all reimbursement claims, reports, audits, and other required information relating to the previously certified entity's provision of Equipment and related services; and

    (3) Take all other steps reasonably necessary to ensure an orderly transfer of responsibilities and uninterrupted functioning of the state program.

    § 64.6209 Eligibility criteria.

    Before providing Equipment or related services to an individual, a certified program shall verify the individual's eligibility in accordance with this section.

    (a) Verification of disability. A certified program shall require an individual applying for Equipment and related services to provide verification of disability in accordance with paragraph (a)(1) or (2) of this section.

    (1) The individual may provide an attestation from a professional with direct knowledge of the individual's disability, either to the best of the professional's knowledge or under penalty of perjury, that the applicant is deaf-blind (as defined in § 64.6203(c) of this part). Such attestation shall include the attesting professional's full name, title, and contact information, including business name, address, phone number, and email address. Such attestation shall also include the basis of the attesting professional's knowledge that the individual is deaf-blind and may also include information about the individual's functional abilities to use Covered Services in various settings.

    (2) The individual may provide existing documentation that the individual is deaf-blind, such as an individualized education program (IEP) or a Social Security determination letter.

    (b) Verification of income eligibility. A certified program shall require an individual applying for Equipment and related services to provide verification that his or her income does not exceed 400 percent of the Federal Poverty Guidelines, as defined in 42 U.S.C. 9902(2), or that he or she is enrolled in a federal program with an income eligibility requirement that does not exceed 400 percent of the Federal Poverty Guidelines, such as Medicaid, Supplemental Nutrition Assistance Program, Supplemental Security Income, Federal Public Housing Assistance, or Veterans and Survivors Pension Benefit. The NDBEDP Administrator may identify state or other federal programs with income eligibility thresholds that do not exceed 400 percent of the Federal Poverty Guidelines for determining income eligibility for participation in the NDBEDP. When an applicant is not already enrolled in a qualifying low-income program, income eligibility may be verified by the certified program using appropriate and reasonable means.

    (c) Prohibition against requiring employment. No certified program may require, for eligibility, that an applicant be employed or actively seeking employment.

    (d) Availability of Covered Services. A certified program may require an equipment recipient to demonstrate, for eligibility, that a Covered Service that the Equipment is designed to use is available for use by the individual.

    (e) Age. A certified program may not establish eligibility criteria that exclude low-income individuals who are deaf-blind of a certain age from applying for or receiving Equipment if the needs of such individuals are not being met through other available resources.

    (f) Reverification. If an individual who has previously received equipment from a certified program applies to a certified program for additional Equipment or related services one year or more after the individual's income was last verified, the certified program shall re-verify an individual's income eligibility in accordance with paragraph (b) before providing new Equipment or related services. If a certified program has reason to believe that an individual's vision or hearing has improved sufficiently that the individual is no longer eligible for Equipment or related services, the certified program shall require reverification of the individual's disability in accordance with paragraph (a) before providing new Equipment or related services.

    § 64.6211 Equipment distribution and related services.

    (a) A certified program shall:

    (1) Distribute Equipment and provide related services;

    (2) Permit the transfer of a recipient's account, records, and any title to and control of the distributed Equipment to another state's certified program when a recipient relocates to another state;

    (3) Permit the transfer of a recipient's account, records, and any title to and control of the distributed Equipment from another state's NDBEDP certified program when a recipient relocates to the program's state;

    (4) Prohibit recipients from transferring Equipment received under the NDBEDP to another person through sale or otherwise, and if it learns that an individual has unlawfully obtained, sold, or transferred Equipment, take appropriate steps to reclaim the Equipment or its worth;

    (5) Include the following or a substantially similar attestation on all consumer application forms:

    I certify that all information provided on this application, including information about my disability and income, is true, complete, and accurate to the best of my knowledge. I authorize program representatives to verify the information provided.

    I permit information about me to be shared with my state's current and successor program managers and representatives for the administration of the program and for the delivery of equipment and services to me. I also permit information about me to be reported to the Federal Communications Commission for the administration, operation, and oversight of the program.

    If I am accepted into the program, I agree to use program services solely for the purposes intended. I understand that I may not sell, give, or lend to another person any equipment provided to me by the program.

    If I provide any false records or fail to comply with these or other requirements or conditions of the program, program officials may end services to me immediately. Also, if I violate these or other requirements or conditions of the program on purpose, program officials may take legal action against me.

    I certify that I have read, understand, and accept these conditions to participate in iCanConnect (the National Deaf-Blind Equipment Distribution Program);

    (6) Conduct outreach, in accessible formats, to inform state residents about the NDBEDP, which may include the development and maintenance of a program Web site;

    (7) Engage an independent auditor to conduct an annual audit, submit a copy of the annual audit to the NDBEDP Administrator, and submit to audits as deemed appropriate by the Commission or its delegated authorities;

    (8) Document compliance with all Commission requirements governing the NDBEDP and provide such documentation to the Commission upon request;

    (9) Retain all records associated with the distribution of Equipment and provision of related services under the NDBEDP, including records that support reimbursement claims and reports required by §§ 64.6213 and 64.6215 of this part, for a minimum of five years; and

    (10) Comply with other applicable provisions of this section.

    (b) A certified program shall not:

    (1) Impose restrictions on specific brands, models or types of communications technology that recipients may receive to access Covered Services; or

    (2) Disable or hinder the use of, or direct manufacturers or vendors of Equipment to disable or hinder the use of, any capabilities, functions, or features on distributed Equipment that are needed to access Covered Services;

    (3) Accept any type of financial arrangement from Equipment vendors that creates improper incentives to purchase particular Equipment.

    § 64.6213 Payments to NDBEDP certified programs.

    (a) Programs certified under the NDBEDP shall be reimbursed for the cost of Equipment that has been distributed to low-income individuals who are deaf blind and authorized related services, up to the state's funding allocation under this program as determined by the Commission or any entity authorized to act for the Commission on delegated authority.

    (b) Upon certification and at the beginning of each TRS Fund year, state programs may elect to submit reimbursement claims on a monthly, quarterly, or semiannual basis;

    (c) Within 30 days after the end of each reimbursement period during the TRS Fund year, each certified program must submit documentation that supports its claim for reimbursement of the reasonable costs of the following:

    (1) Equipment and related expenses, including maintenance, repairs, warranties, returns, refurbishing, upgrading, and replacing Equipment distributed to consumers;

    (2) Individual needs assessments;

    (3) Installation of Equipment and individualized consumer training;

    (4) Maintenance of an inventory of Equipment that can be loaned to consumers during periods of Equipment repair or used for other NDBEDP purposes, such as conducting individual needs assessments;

    (5) Outreach efforts to inform state residents about the NDBEDP;

    (6) Train-the-trainer activities and programs;

    (7) Travel expenses; and

    (8) Administrative costs, defined as indirect and direct costs that are not included in other cost categories of this paragraph (c) and that are necessary for the operation of a program, but not to exceed 15 percent of the certified program's funding allocation.

    (d) Documentation will be provided in accordance with claim filing instructions issued by the TRS Fund Administrator. The NDBEDP Administrator and the TRS Fund Administrator may require a certified program to submit supplemental information and documentation when necessary to verify particular claims.

    (e) With each request for payment, the chief executive officer, chief financial officer, or other senior executive of the certified program, such as a manager or director, with first-hand knowledge of the accuracy and completeness of the claim in the request, must certify as follows:

    I swear under penalty of perjury that I am (name and title), an officer of the above-named reporting entity, and that I have examined all cost data associated with equipment and related services for the claims submitted herein, and that all such data are true and an accurate statement of the business activities conducted pursuant to the NDBEDP by the above-named certified program.

    § 64.6215 Reporting requirements.

    (a) Every six months, for the periods January through June and July through December, a certified program shall submit data to the Commission in the following categories:

    (1) Each Equipment recipient's identity and other relevant characteristics;

    (2) Information about the Equipment provided, including costs;

    (3) Information about assessments, installation, and training, including costs;

    (4) Information about local outreach undertaken, including costs; and

    (5) Promptness of service.

    (b) The categories of information to be reported may be supplemented by the Chief, Consumer and Governmental Affairs Bureau, as necessary to further the purposes of the program and prevent fraud, waste, and abuse. Reports are due 60 days after the end of a reporting period. The specific items of information to be reported in each category and the manner in which they are to be reported shall be set forth in instructions issued by the NDBEDP Administrator.

    (c) With each report, the chief executive officer, chief financial officer, or other senior executive of the certified program, such as a director or manager, with first-hand knowledge of the accuracy and completeness of the information provided in the report, must certify as follows:

    I swear under penalty of perjury that I am (name and title), an officer of the above-named reporting entity, and that the entity has policies and procedures in place to ensure that recipients satisfy the NDBEDP eligibility requirements, that the entity is in compliance with the Commission's NDBEDP rules, that I have examined the foregoing reports and that all requested information has been provided, and all statements of fact are true and an accurate statement of the business activities conducted pursuant to the NDBEDP by the above-named certified program.

    § 64.6217 Complaints.

    Complaints against NDBEDP certified programs for alleged violations of this subpart may be either informal or formal.

    (a) Informal complaints. (1) An informal complaint may be transmitted to the Consumer and Governmental Affairs Bureau by any reasonable means, such as letter, fax, telephone, TTY, email, or the Commission's online complaint filing system.

    (2) Content. An informal complaint shall include the name and address of the complainant; the name of the NDBEDP certified program against whom the complaint is made; a statement of facts supporting the complainant's allegation that the NDBEDP certified program has violated or is violating section 719 of the Communications Act or the Commission's rules, or both; the specific relief or satisfaction sought by the complainant; and the complainant's preferred format or method of response to the complaint by the Commission and the NDBEDP certified program, such as by letter, fax, telephone, TTY, or email.

    (3) Service. The Commission shall promptly forward any complaint meeting the requirements of this subsection to the NDBEDP certified program named in the complaint and call upon the program to satisfy or answer the complaint within the time specified by the Commission.

    (b) Review and disposition of informal complaints. (1) Where it appears from the NDBEDP certified program's answer, or from other communications with the parties, that an informal complaint has been satisfied, the Commission may, in its discretion, consider the matter closed. In all other cases, the Commission shall inform the parties of its review and disposition of a complaint filed under this subpart. Where practicable, this information shall be transmitted to the complainant and NDBEDP certified program in the manner requested by the complainant.

    (2) A complainant unsatisfied with the NDBEDP certified program's response to the informal complaint and the Commission's disposition of the informal complaint may file a formal complaint with the Commission pursuant to paragraph (c) of this section.

    (c) Formal complaints. Formal complaints against an NDBEDP certified program may be filed in the form and in the manner prescribed under §§ 1.720 through 1.736 of this chapter. Commission staff may grant waivers of, or exceptions to, particular requirements under §§ 1.720 through 1.736 of this chapter for good cause shown; provided, however, that such waiver authority may not be exercised in a manner that relieves, or has the effect of relieving, a complainant of the obligation under §§ 1.720 and 1.728 of this chapter to allege facts which, if true, are sufficient to constitute a violation or violations of section 719 of the Communications Act or this subpart.

    (d) Actions by the Commission on its own motion. The Commission may on its own motion conduct such inquiries and hold such proceedings as it may deem necessary to enforce the requirements of this subpart and section 719 of the Communications Ac