Page Range | 65853-66178 | |
FR Document |
Page and Subject | |
---|---|
81 FR 66095 - Sunshine Act Meeting | |
81 FR 66111 - Sunshine Act Meeting | |
81 FR 66092 - Regular Board of Directors Sunshine Act Meeting | |
81 FR 66118 - Culturally Significant Objects Imported for Exhibition Determinations: “Time and Cosmos in Greco-Roman Antiquity” Exhibition | |
81 FR 66118 - Culturally Significant Objects Imported for Exhibition Determinations: “Martin Luther: Art and the Reformation” Exhibition | |
81 FR 66093 - Sunshine Act Meeting Notice | |
81 FR 66094 - Temporary Emergency Committee of the Board of Governors; Sunshine Act Meeting | |
81 FR 66059 - Six-Month Extension of Temporary Protected Status Benefits for Orderly Transition Before Termination of Liberia's Designation for Temporary Protected Status | |
81 FR 66054 - Six-Month Extension of Temporary Protected Status Benefits for Orderly Transition Before Termination of Sierra Leone's Designation for Temporary Protected Status | |
81 FR 66064 - Six-Month Extension of Temporary Protected Status Benefits for Orderly Transition Before Termination of Guinea's Designation for Temporary Protected Status | |
81 FR 65995 - Forest Resource Coordinating Committee | |
81 FR 66077 - Indian Gaming; Extension of Tribal-State Class III Gaming Compact (Rosebud Sioux Tribe and the State of South Dakota) | |
81 FR 65888 - Drawbridge Operation Regulation; Sacramento River, Sacramento, CA | |
81 FR 66005 - Application to Export Electric Energy; BioUrja Power, LLC | |
81 FR 66131 - Proposed Collection; Comment Request for Form 8734 | |
81 FR 66051 - Agency Information Collection Activities: Proposed Collection; Comment Request; FEMA Preparedness Grants: Homeland Security Grant Program (HSGP) | |
81 FR 66133 - Proposed Collection; Comment Request | |
81 FR 66128 - Proposed Collection; Comment Request | |
81 FR 65917 - Fluopicolide; Pesticide Tolerances | |
81 FR 66132 - Proposed Collection; Comment Request for Form 8873 | |
81 FR 66118 - Review of the Designation as a Foreign Terrorist Organization of al-Aqsa Martyrs' Brigade (and Other Aliases) | |
81 FR 66124 - Proposed Collection; Comment Request for Revenue Procedure 2012-25 | |
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 Terrorist | |
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 Access | |
81 FR 66121 - Proposed Collection; Comment Request for Form 1120-ND | |
81 FR 66071 - 30-Day Notice of Proposed Information Collection: Veterans Home Rehabilitation Program | |
81 FR 66016 - Receipt of Information Under the Toxic Substances Control Act | |
81 FR 66013 - Notice of Approval of Clean Air Act Permit for Navajo Generating Station | |
81 FR 66123 - Proposed Collection; Comment Request for Form 6497 | |
81 FR 66128 - Proposed Collection; Comment Request for Regulation Project | |
81 FR 66130 - Proposed Collection; Comment Request for Regulation Project | |
81 FR 66015 - Clean Air Act Advisory Committee (CAAAC): Request for Nominations | |
81 FR 66126 - Proposed Collection; Comment Request for Regulation Project | |
81 FR 66050 - The U.S. Customs and Border Protection User Fee Advisory Committee (UFAC) | |
81 FR 66008 - Combined Notice of Filings | |
81 FR 66009 - Records Governing Off-the-Record Communications; Public Notice | |
81 FR 66010 - Combined Notice of Filings #2 | |
81 FR 66007 - Combined Notice of Filings #1 | |
81 FR 66009 - Combined Notice of Filings #1 | |
81 FR 66031 - Agency Information Collection Activities: Submission for OMB Review; Comment Request | |
81 FR 66127 - Proposed Collection; Comment Request for Certain Retirement Plans Under Sections 401(k) and 401(m) and Guidance on Cash or Deferred Arrangements | |
81 FR 66135 - Proposed Collection; Comment Request for Form 8908 | |
81 FR 66125 - Proposed Collection; Comment Request for Form 8612 | |
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 Request | |
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 Request | |
81 FR 66125 - Proposed Collection; Comment Request for Notice 2006-109. | |
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 Request | |
81 FR 66133 - Proposed Collection; Comment Request for [REG-106542-98] T.D. 9032 | |
81 FR 65987 - Class I Railroad Accounting and Financial Reporting-Transportation of Hazardous Materials | |
81 FR 66048 - National Institute of Neurological Disorders and Stroke | |
81 FR 66041 - National Institute of Allergy and Infectious Diseases; Notice of Closed Meeting | |
81 FR 66045 - National Institute of Allergy and Infectious Diseases; Notice of Closed Meeting | |
81 FR 66041 - National Institute of Allergy And Infectious Diseases; Notice of Closed Meeting | |
81 FR 66042 - National Human Genome Research Institute; Notice of Closed Meeting | |
81 FR 66131 - Proposed Collection; Comment Request for Form 6197 | |
81 FR 66045 - National Human Genome Research Institute; Notice of Closed Meeting | |
81 FR 66046 - Center for Scientific Review; Notice of Closed Meetings | |
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 Disorders | |
81 FR 66132 - Proposed Collection; Comment Request for Revenue Procedure | |
81 FR 66123 - Proposed Collection; Comment Request for Regulation Project | |
81 FR 66135 - Proposed Collection; Comment Request for Regulation Project | |
81 FR 66124 - Proposed Collection; Comment Request for Revenue Procedure 98-19 | |
81 FR 66127 - Proposed Collection; Comment Request for Form 8868 | |
81 FR 66134 - Proposed Collection; Comment Request for Form 720-CS | |
81 FR 66000 - New England Fishery Management Council; Public Meeting | |
81 FR 66122 - Proposed Collection; Comment Request for Notice 2006-107 | |
81 FR 66129 - Proposed Collection; Comment Request for Revenue Procedure 2011-34, Rules for Certain Rental Real Estate Activities | |
81 FR 66023 - Submission for OMB Review; Termination Settlement Proposal Forms-FAR (SF 1435 Through 1440) | |
81 FR 65889 - Safety Zone; Arkansas River, Little Rock, AR | |
81 FR 65874 - Repair Stations; Response to Public Comments | |
81 FR 66119 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: ATC Authorizations in Controlled Airspace Under Part 107 | |
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 Procedures | |
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 2017 | |
81 FR 66035 - Generic Drug User Fees; Public Meeting; Request for Comments | |
81 FR 66049 - National Boating Safety Advisory Council | |
81 FR 66136 - Proposed Information Collection (Customer Satisfaction Surveys); Activity: Comment Request | |
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; Correction | |
81 FR 66093 - New Postal Product | |
81 FR 65853 - Revision to Nonprocurement Suspension and Debarment Regulations | |
81 FR 66005 - Proposed Agency Information Collection | |
81 FR 65998 - Marine Mammals; File No. 18529 | |
81 FR 66004 - Environmental Management Site-Specific Advisory Board, Paducah | |
81 FR 66040 - Supplement for Zika Response, a Single-Award Deviation From Competition Requirements for the National Center for Medical Home Implementation Cooperative Agreement | |
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) | |
81 FR 66024 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
81 FR 65888 - Drawbridge Operation Regulation; Rancocas Creek, Burlington, NJ | |
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 Report | |
81 FR 65875 - Army National Military Cemeteries | |
81 FR 66001 - Notice of Availability of Government-Owned Inventions; Available for Licensing | |
81 FR 66000 - Notice of Intent To Grant Exclusive Patent License to GoXtudio, Inc.; Tempe, AZ | |
81 FR 65996 - Deschutes Provincial Advisory Committee | |
81 FR 66077 - Colorado River Basin Salinity Control Advisory Council Notice of Public Meeting | |
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 Districts | |
81 FR 66022 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
81 FR 65997 - New England Fishery Management Council; Public Meeting | |
81 FR 66026 - Agency Forms Undergoing Paperwork Reduction Act Review | |
81 FR 66028 - Agency Forms Undergoing Paperwork Reduction Act Review | |
81 FR 66030 - Agency Forms Undergoing Paperwork Reduction Act Review | |
81 FR 66120 - Sanctions Actions Pursuant to Executive Order 13224 | |
81 FR 66121 - Sanctions Actions Pursuant to Executive Order 13224 | |
81 FR 65998 - Gulf of Mexico Fishery Management Council; Public Meeting | |
81 FR 66022 - Agency Information Collection Activities; Submission for OMB Review; Comment Request | |
81 FR 66053 - Agency Information Collection Activities: Immigrant Petition by Alien Entrepreneur, Form I-526; Revision of a Currently Approved Collection | |
81 FR 66091 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Domestic Agricultural In-Season Wage Report | |
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 Disabilities | |
81 FR 66021 - Notice of Termination; 10370 First Commercial Bank of Tampa Bay, Tampa, Florida | |
81 FR 65995 - Submission for OMB Review; Comment Request | |
81 FR 66034 - Submission for OMB Review; Comment Request | |
81 FR 66029 - Breast and Cervical Cancer Early Detection and Control Advisory Committee (BCCEDCAC): Notice of Charter Renewal | |
81 FR 66029 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP): Initial Review | |
81 FR 66030 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel (SEP): Initial Review | |
81 FR 66029 - Disease, Disability, and Injury Prevention and Control Special Emphasis Panel: Notice of Charter Renewal | |
81 FR 66029 - Advisory Committee on Immunization Practices | |
81 FR 66026 - Request for Nominations of Candidates To Serve on the Advisory Council for the Elimination of Tuberculosis (ACET) | |
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 Surveys | |
81 FR 66020 - Federal Advisory Committee Act; Disability Advisory Committee | |
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 Sarcomas | |
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 Orders | |
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 Fees | |
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) | |
81 FR 66105 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing of a Proposed Rule Change Relating to SPX Combo Orders | |
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 M | |
81 FR 66043 - National Institute of Mental Health; Notice of Closed Meetings | |
81 FR 66045 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of Closed Meeting | |
81 FR 66042 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of Meetings | |
81 FR 66045 - Eunice Kennedy Shriver National Institute of Child Health & Human Development; Notice of Closed Meeting | |
81 FR 66041 - National Heart, Lung, and Blood Institute, Notice of Meeting | |
81 FR 66042 - National Center for Advancing Translational Sciences; Notice of Closed Meetings | |
81 FR 66043 - Center for Scientific Review; Notice of Closed Meetings | |
81 FR 66017 - Information Collections Being Submitted for Review and Approval to the Office of Management and Budget | |
81 FR 66084 - Investigations Regarding Eligibility To Apply for Worker Adjustment Assistance | |
81 FR 66088 - Amended Certification Regarding Eligibility To Apply for Worker Adjustment Assistance | |
81 FR 66085 - Notice of Determinations Regarding Eligibility To Apply for Worker Adjustment Assistance | |
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 Assistance | |
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 Assistance | |
81 FR 66083 - Amended Certification Regarding Eligibility To Apply for Worker Adjustment Assistance | |
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 Reconsideration | |
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 Assistance | |
81 FR 66083 - Halliburton Energy Services, 2600 S. 2nd Street, Duncan, Oklahoma; Notice of Affirmative Determination Regarding Application for Reconsideration | |
81 FR 66006 - 4C Aquisition, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
81 FR 66006 - Summit Farms Solar, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
81 FR 66011 - Combined Notice of Filings | |
81 FR 66008 - Combined Notice of Filings #1 | |
81 FR 66079 - Bulk Manufacturer of Controlled Substances Application: Cerilliant Corporation | |
81 FR 66076 - 60-Day Notice of Proposed Information Collection: Family Options Study: Long-Term Tracking | |
81 FR 66081 - Importer of Controlled Substances Application: Catalent CTS, LLC | |
81 FR 66052 - Critical Infrastructure Partnership Advisory Council | |
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 Authorities | |
81 FR 66000 - Meeting of the Board of Visitors of Marine Corps University | |
81 FR 66094 - Agency Forms Submitted for OMB Review, Request for Comments | |
81 FR 66082 - Agency Information Collection Activities; Proposed Collection, Comments Requested; Extension of a Currently Approved Collection; Cargo Theft Incident Report | |
81 FR 66078 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Application for an Amended Federal Firearms License (ATF F 5300.38) | |
81 FR 66073 - 60-Day Notice of Proposed Information Collection: Recordkeeping for HUD's Continuum of Care Program | |
81 FR 66072 - 60-Day Notice of Proposed Information Collection: FHA-Insured Mortgage Loan Servicing of Payments, Prepayments, Terminations, Assumptions and Transfers | |
81 FR 66070 - 60-Day Notice of Proposed Information Collection: Family Report, Moving to Work Family Report | |
81 FR 66073 - 60-Day Notice of Proposed Information Collection: Financial Statement of Corporate Application for Cooperative Housing Mortgage | |
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 Area | |
81 FR 66013 - Environmental Impact Statements; Notice of Availability | |
81 FR 65897 - Approval of Air Quality Implementation Plans; Missouri State Implementation Plan for the 2008 Lead Standard | |
81 FR 65984 - Service Rules Governing Narrowband Operations in the 769-775/799-805 MHz Bands | |
81 FR 65924 - Chemical Data Reporting; 2016 Submission Period Extension | |
81 FR 65983 - Reporting for Qualified Tuition and Related Expenses; Education Tax Credits; Correction | |
81 FR 65891 - Sale and Disposal of National Forest System Timber; Forest Products for Traditional and Cultural Purposes | |
81 FR 66138 - Revised Medical Criteria for Evaluating Mental Disorders | |
81 FR 65988 - Atlantic Highly Migratory Species; Individual Bluefin Quota Program; Inseason Transfers | |
81 FR 65899 - Air Plan Approval; Georgia; Prong 4-2008 Ozone, 2010 NO2 | |
81 FR 65901 - Treatment of Indian Tribes in a Similar Manner as States for Purposes of Section 303(d) of the Clean Water Act | |
81 FR 65948 - Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Section 105, Relay Services for Deaf-Blind Individuals | |
81 FR 65997 - Warm Spring Habitat Enhancement EIS-Helena-Lewis and Clark National Forest, Jefferson County, Montana | |
81 FR 65860 - Airworthiness Directives; Airbus Airplanes | |
81 FR 65926 - Assessment and Collection of Regulatory Fees for Fiscal Year 2016 | |
81 FR 65872 - Airworthiness Directives; The Boeing Company Airplanes | |
81 FR 65857 - Airworthiness Directives; The Boeing Company Airplanes | |
81 FR 65980 - Airworthiness Directives; Airbus Airplanes | |
81 FR 65864 - Airworthiness Directives; The Boeing Company Airplanes |
Food and Nutrition Service
Forest Service
National Oceanic and Atmospheric Administration
Army Department
Navy Department
Energy Efficiency and Renewable Energy Office
Federal Energy Regulatory Commission
Agency for Toxic Substances and Disease Registry
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
U.S. Citizenship and Immigration Services
U.S. Customs and Border Protection
Indian Affairs Bureau
Land Management Bureau
Reclamation Bureau
Alcohol, Tobacco, Firearms, and Explosives Bureau
Drug Enforcement Administration
Employment and Training Administration
Federal Aviation Administration
Foreign Assets Control Office
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
Office of the Secretary, Interior.
Final rule.
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.
This final rule is effective September 26, 2016.
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
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.
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.
The Administrative Procedure Act (APA) requires agencies to publish a notice of proposed rulemaking in the
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.
The APA also generally requires a 30-day delay in the effective date of final rules after the date of their publication in the
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.
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.
Under the Regulatory Flexibility Act (as amended by the Small Business Regulatory Enforcement Fairness Act [SBREFA] of 1996) (5 U.S.C. 601
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,
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.
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,
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.
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.
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.
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.
This rule does not contain information collection requirements, and a submission under the Paperwork Reduction Act (44 U.S.C. 3501,
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
This rule is not a significant energy action under the definition in E.O. 13211. A Statement of Energy Effects is not required.
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
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:
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).
This part provides procedures for the Department of the Interior nonprocurement suspension and debarment actions.
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.
(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.
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.
(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
(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.
(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.
(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.
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.
(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.
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.
(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.
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
(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.
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.
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.
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.
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.
Respondent means a person who is the subject of a DOI suspension or proposed debarment action.
Federal Aviation Administration (FAA), DOT.
Final rule.
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.
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.
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:
You may examine the AD docket on the Internet at
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:
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
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.
Boeing 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.
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.
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.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We reviewed Boeing 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
We estimate that this AD affects 18 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
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:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 31, 2016.
None.
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.
Air Transport Association (ATA) of America Code 25, Equipment/furnishings.
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.
Comply with this AD within the compliance times specified, unless already done.
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.
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.
(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:
(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
(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.
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:
(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:
(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:
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Final rule.
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.
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.
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
You may examine the AD docket on the Internet at
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.
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
The European Aviation Safety Agency (EASA), which is the Technical Agent
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
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.
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.
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.
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.
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.
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
• Are consistent with the intent that was proposed in the NPRM for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM.
Airbus has issued 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
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.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 31, 2016.
This AD replaces AD 2000-10-18, Amendment 39-11742 (65 FR 34055, May 26, 2000) (“AD 2000-10-18”).
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.
Air Transport Association (ATA) of America Code 54, Nacelles/pylons.
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.
Comply with this AD within the compliance times specified, unless already 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 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).
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).
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).
Airbus Service Bulletin A310-54-2023,
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.
(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).
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.
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.
The following provisions also apply to this AD:
(1)
(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)
(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
(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.
(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
(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:
Federal Aviation Administration (FAA), DOT.
Final rule.
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.
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.
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
You may examine the AD docket on the Internet at
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:
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
We gave the public the opportunity to participate in developing this AD. The following presents the comments
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.
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.
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 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
We estimate that this AD affects 499 airplanes of U.S. registry. We estimate the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 31, 2016.
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”).
This AD affects all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes; certificated in any category.
Air Transport Association (ATA) of America Code 28, Fuel.
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.
Comply with this AD within the compliance times specified, unless already done.
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.
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.
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,
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.
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.
(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.
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.
(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.
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
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.
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.
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.
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.
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.
(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
(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.
(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:
(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:
(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
(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:
Federal Aviation Administration (FAA), DOT.
Final rule.
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.
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.
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:
You may examine the AD docket on the Internet at
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:
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
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.
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 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
We estimate that this AD affects 176 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective October 31, 2016.
This AD affects AD 2011-15-03, Amendment 39-16750 (76 FR 41659, July 15, 2011). (“AD 2011-15-03”)
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.
Air Transport Association (ATA) of America Code 28, Fuel.
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.
Comply with this AD within the compliance times specified, unless already done.
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.
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.
After accomplishing the revision required by paragraph (h) of this AD, no alternative actions (
(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:
(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.
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:
(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:
(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:
Federal Aviation Administration (FAA), DOT.
Final rule; confirmation of effective date and response to public comments.
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.
Effective September 26, 2016.
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
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
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.
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 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.
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.
An electronic copy of a rulemaking document my be obtained by using the Internet—
1. Search the Federal eRulemaking Portal (
2. Visit the FAA's Regulations and Policies Web page at
3. Access the Government Printing Office's Web page at
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.
Comments received may be viewed by going to
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
Accordingly, the interim rule published July 15, 2016 (81 FR 49158), is adopted as final without change.
Department of the Army, DoD.
Final rule.
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.
This rule is effective on October 26, 2016.
Mr. Robert Quackenbush, Army National Military Cemeteries, 703-614-7150.
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.
The proposed rule was published in the
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
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.
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.
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.
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.
The Army has determined that this rule does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.
The Army has determined that E.O. 12630 does not apply because the rule does not impair private property rights.
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.
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.
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.
Armed forces, Armed forces reserves, Military personnel, Monuments and memorials, Veterans.
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.
As used in this part, the following terms have these meanings:
(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.
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.
(1)
(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)
(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)
(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)
(i) Is unmarried;
(ii) Has no dependents; and
(iii) Has attained the age of twenty-one years.
(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.
(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.
(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.
(1)
(2)
(3)
This part specifies the authorities and assigns the responsibilities for the development, operation, maintenance, and administration of the Army National Military Cemeteries.
(a)
(b)
(a)
(b)
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.
(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.
(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.
(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.
(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.
(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
(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 (
(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.
(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.
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)
(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)
(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
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)
(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
(8) Any Active Duty Designee as defined in this part.
(b)
(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.
(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.
(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.
(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.
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.
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 (
(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
(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.
(a)
(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)
(c)
(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.
(a)
(b)
(c)
(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)
(e)
(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)
(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)
(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.
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.
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.
(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
(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.
(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.
(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.
(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.
(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.
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.
The placement of memorials or commemorative monuments in Arlington National Cemetery will be carried out in accordance with 38 U.S.C. 2409(b).
(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.
(a)
(b)
(c)
(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 (
(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)
(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.
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.
All officials and staff of the media are subject to the Visitors Rules enumerated
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
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 is effective from 10 a.m. to 11 a.m. on October 2, 2016.
The docket for this deviation, [USCG-2016-0894], is available at
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
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.
Coast Guard, DHS.
Notice of deviation from drawbridge regulations.
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.
The deviation is effective from 7 a.m. on Monday, October 3, 2016, to 3:30 p.m. on Monday, October 31, 2016.
The docket for this deviation, [USCG-2016-0892] is available at
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
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.
Coast Guard, DHS.
Temporary final rule.
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.
This rule is effective from 7 a.m. on October 1, 2016 through 10 p.m. on November 1, 2016.
To view documents mentioned in this preamble as being available in the docket, go to
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
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
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.
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.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.
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.
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.
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
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
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.
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
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
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:
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.
(a)
(b)
(c)
(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)
Forest Service, USDA.
Final rule.
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.
This rule is effective October 26, 2016.
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
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.
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
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
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,
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.
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.
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.
Additionally, the authority citation under part 223 now includes references to both 25 U.S.C. 3055 and 3057.
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.
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.
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
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.
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.
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.
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.
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
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.
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,
Pursuant to Executive Order 13175,
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.
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
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:
Comment is invited on (1) whether this information collection is necessary for the stated purposes and proper performance of the functions of the
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.
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.
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.
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:
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.
(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:
(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
Environmental Protection Agency (EPA).
Final rule.
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
This final rule is effective on October 26, 2016.
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
Stephanie Doolan, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7719, or by email at
Throughout this document “we,” “us,” or “our” refer to EPA.
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/m
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.
The public comment period on EPA's proposed rule opened February 29, 2016, the date of its publication in the
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/m
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.
EPA is taking final action to amend the Missouri SIP to approve the SIP
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.
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
• 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
• 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
A major rule cannot take effect until 60 days after it is published in the
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))
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.
For the reasons stated in the preamble, EPA amends 40 CFR part 52 as set forth below:
42 U.S.C. 7401
(d) * * *
(e) * * *
Environmental Protection Agency.
Final rule.
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 (NO
This rule will be effective [insert date 30 days after date of publication in the
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
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
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
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 NO
In its commitment letter, Georgia commits to satisfy the prong 4 requirements for the 2008 8-hour ozone NAAQS, 2010 1-hour NO
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.
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 NO
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations.
• 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
• 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
• 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
• 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
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.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate Matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
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 NO
Environmental Protection Agency (EPA).
Final rule.
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.
This final rule is effective October 26, 2016.
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
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:
This supplementary information is organized as follows:
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
If you have questions regarding the effect of this rule on a particular entity, please consult the person listed in the preceding
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
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.
In developing this rule, EPA conducted consultation and coordination with tribes and states before proposing this rule in the
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.
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
The CWA, 33.U.S.C. 1251,
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.
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
On May 16, 2016, EPA published an interpretive rule revising the Agency's approach to tribal jurisdiction under the CWA.
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.
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.
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.
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.
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
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.
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.
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).
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 (
The second criterion requires the tribe to have a governing body “carrying out substantial governmental duties and
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 (
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 (
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.
In addressing the second exception of
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.
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
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.
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.
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.
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” (
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.
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
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—
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 (
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
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
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.
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—
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.
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.
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.
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.
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.
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.
In the proposed rule, EPA did not propose to require tribes to have CWA-applicable WQS—
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
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.
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.
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 (
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.
In this section, EPA responds to several additional topics that were raised in public comments.
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
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.
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.
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.
Additional information about these statutes and Executive Orders can be found at
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.
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
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 (
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.
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.
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.
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.
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
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.
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.
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.
This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The 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
EPA provided meaningful participation opportunities for tribes in the development of this rule, as described in “
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).
Environmental protection, Grant programs-environmental protection, Indian lands, Intergovernmental relations, Reporting and recordkeeping requirements, Water pollution control, Water supply.
For the reasons stated in the preamble, the U.S. Environmental Protection Agency amends 40 CFR part 130 as follows:
33 U.S.C. 1251
(a) The Regional Administrator may accept and approve a tribal application for purposes of administering the Clean
(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,
(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
(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.
Environmental Protection Agency (EPA).
Final rule.
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.
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
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2015-0791, is available at
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:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
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:
•
•
•
In the
In the
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.
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
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.
In the
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
For a detailed discussion of the aggregate risk assessments and determination of safety for these tolerances, please refer to the August 6, 2014,
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.
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.
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
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
a.
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.
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
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.
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.
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 (
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
d.
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
a.
b.
c.
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
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.
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.
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:
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 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.
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).
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.
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.
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
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
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
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
The additions and revisions read as follows:
(a) * * *
(b)
Environmental Protection Agency (EPA).
Final rule.
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.
This final rule is effective September 26, 2016.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2009-0187, is available at
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,
• Chemical users and processors who may manufacture a byproduct chemical substance (NAICS codes 22, 322, 331, and 3344,
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
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
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
1. American Chemistry Council. “Request for an Extension to the TSCA Chemical Data Reporting (CDR) 2016 Submission Period [Letter].” August 30, 2016.
Additional information about these statutes and Executive Orders can be found at
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).
This final rule does not contain any new or revised information collections subject to OMB approval under the PRA, 44 U.S.C. 3501
This final rule is not subject to the RFA, 5 U.S.C. 601
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.
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
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.
This action is subject to the CRA, 5 U.S.C. 801
Environmental protection, Chemicals, Confidential Business Information (CBI), Hazardous materials, Importer, Manufacturer, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
15 U.S.C. 2607(a).
* * * 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.* * *
Federal Communications Commission.
Final rule.
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.
Effective September 26, 2016. To avoid penalties and interest, regulatory fees should be paid by the due date of September 27, 2016.
Roland Helvajian, Office of Managing Director at (202) 418-0444.
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.
1. As required by the Regulatory Flexibility Act of 1980 (RFA),
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,
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).
4. This
5. Congress adopted a regulatory fee schedule in 1993
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. . . .”
7. As part of its annual review, the Commission regularly seeks to improve its regulatory fee analysis.
8. In our
9. In this
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,
11. In the
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.
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.
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.
15. In the
16. EchoStar now observes that since it submitted its proposal, we have adopted reforms that streamlined the
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
18. We did not specifically seek comment on issues pertaining to the submarine cable industry. The proposed rates in the
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.
20. Certain commenters agree with ITTA's proposals.
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.
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.
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,
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.”
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,
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.
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.
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.
29. In the
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.
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.
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.
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,
34. In the
35. Several commenters contend that our proposal is too burdensome for small independent radio and television stations.
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
37. The PRBA and Arso comment on the issues set forth in the PRBA December 10, 2014 letter (PRBA Letter),
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.
39. We decline to adopt the PRBA proposal at this time. Fee relief is ordinarily processed through a waiver request or payment deferral.
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.
41. Pursuant to an Office of Management and Budget (OMB) directive,
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.
43. During the fee season for collecting FY 2016 regulatory fees, regulatees can pay their fees by credit card through
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
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:
•
•
•
•
•
•
•
•
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”).
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.
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 (
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.
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.
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.
52. Providing a 30 day period after
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
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.
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.
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
1. As required by the Regulatory Flexibility Act of 1980, as amended (RFA),
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).
3. This
4. None.
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.
7.
8.
9.
10.
11.
12.
13.
14.
15. W
16.
17. In assessing whether a business concern qualifies as small under the above definition, business (control) affiliations
18. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 396.
19.
20. In assessing whether a business concern qualifies as small under the above size standard, business affiliations must be included.
21.
22.
23.
24.
25.
26.
27.
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.
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.
30.
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?
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.
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.
34. This
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.
36. This
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
38. None.
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
40. IT IS FURTHER ORDERED that this
41. IT IS FURTHER ORDERED that the Commission's Consumer & Governmental Affairs Bureau, Reference Information Center, SHALL SEND a copy of this
Administrative practice and procedure, Radio, Reporting and recordkeeping requirements.
Federal Communications Commission.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR, part 1 as follows:
47 U.S.C. 151, 154(i), 155, 157, 225, 303(r), 309, 1403, 1404, 1451, and 1452.
(a) The following schedule applies for the listed services:
(b)
(2) The fee amount, per active 64 KB circuit or equivalent will be determined for each fiscal year.
(c)
Federal Communications Commission.
Final rule.
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.
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
Rosaline Crawford, Disability Rights Office, Consumer and Governmental Affairs Bureau, at (202) 418-2075 or email
This is a summary of the Commission's
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.”
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);
2. The Commission released the
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.
4.
5.
6.
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
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.
12.
13.
14.
15.
16.
17.
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.
20.
21.
22.
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.
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,
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.
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.
28.
29.
30.
31.
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.
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)—
34.
(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.
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.
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
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
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.
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
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.
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.
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.”
49. In the
50.
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:
53. In the
54. Finally, in the
55.
56.
57.
58.
59.
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
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—
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
65.
66.
67.
68.
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.
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).
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.
73.
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.
75.
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.
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.
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 (
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.
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
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.
89.
90.
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.
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.
95.
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 (
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.
101.
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
103.
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.
105.
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.
107.
108.
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.
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.
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.
115.
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.
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 (
119. Finally, as explained in the
120.
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
123.
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.
125.
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.
128.
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
131.
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,
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 (
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.
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
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 (
140.
141.
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.
142.
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
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.
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.
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
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.
151.
152.
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
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
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.
158.
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.
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.”
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,
162. In the
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
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 (
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).
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
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.
Individuals with disabilities, Telecommunications.
For the reasons stated in the preamble, the Federal Communications Commission amends Title 47 of the Code of Federal Regulations as follows:
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.
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)
(b)
(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)
(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)
(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)
(f)
(g)
(h)
(i) [Reserved]
(j)
(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.
Before providing Equipment or related services to an individual, a certified program shall verify the individual's eligibility in accordance with this section.
(a)
(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)
(c)
(d)
(e)
(f)
(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.
(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.
(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
Complaints against NDBEDP certified programs for alleged violations of this subpart may be either informal or formal.
(a)
(2)
(3)
(b)
(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)
(d)