Federal Register Vol. 81, No.189,

Federal Register Volume 81, Issue 189 (September 29, 2016)

Page Range66791-67090
FR Document

81_FR_189
Current View
Page and SubjectPDF
81 FR 67089 - National Voter Registration Day, 2016PDF
81 FR 67027 - Sunshine Act MeetingPDF
81 FR 67027 - Order of Suspension of Trading; i n the Matter of Accel Brands, Inc.PDF
81 FR 67013 - Sunshine Act MeetingPDF
81 FR 66949 - Sunshine Act NoticePDF
81 FR 67047 - Sunshine Act Meetings; Unified Carrier Registration Plan Board of DirectorsPDF
81 FR 66919 - Board for International Food and Agricultural Development; Notice of MeetingPDF
81 FR 66912 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Shrimp Fishery of the Gulf of Mexico; Revision of Bycatch Reduction Device Testing ManualPDF
81 FR 66961 - Notification of a Public Teleconference and Meeting of the Science Advisory Board Chemical Assessment Advisory Committee Augmented for the Review of EPA's Draft Hexahydro-1,3,5-trinitro-1,3,5-triazine (RDX) IRIS AssessmentPDF
81 FR 67058 - Proposed Collection; Comment Request for Publication 1345PDF
81 FR 67059 - Proposed Collection; Comment Request for Form 8316PDF
81 FR 67059 - Proposed Collection; Comment Request for Revenue Procedure 2006-42PDF
81 FR 66970 - National Vaccine Injury Compensation Program; List of Petitions ReceivedPDF
81 FR 66951 - Agency Information Collection Activities; Comment Request; Student Assistance General Provisions-Subpart J-Approval of Independently Administered TestsPDF
81 FR 67012 - Tennessee State Plan; Change in Level of Federal Enforcement: Marine ConstructionPDF
81 FR 67006 - Aerial Lifts Standard; Extension of the Office of Management and Budget's (OMB) Approval of Information Collection (Paperwork) RequirementsPDF
81 FR 67010 - Student Data Form; Extension of the Office of Management and Budget's (OMB) Approval of Information Collection (Paperwork) RequirementsPDF
81 FR 66995 - Notice of Public Meeting for the Southeast Oregon Resource Advisory CouncilPDF
81 FR 66921 - Welded Stainless Pressure Pipe From India: Final Determination of Sales at Less Than Fair ValuePDF
81 FR 66808 - Drawbridge Operation Regulation; Keweenaw Waterway, Houghton and Hancock, MIPDF
81 FR 66925 - Countervailing Duty Investigation of Welded Stainless Pressure Pipe From India: Final Affirmative DeterminationPDF
81 FR 66810 - Safety Zone: Monte Foundation Fireworks Extravaganza, Capitola, CAPDF
81 FR 66950 - Charter Renewal of Department of Defense Federal Advisory CommitteesPDF
81 FR 66996 - Certain Hot-Rolled Steel Flat Products From Australia, Brazil, Japan, Korea, the Netherlands, Turkey, and the United KingdomPDF
81 FR 66997 - Certain Table Saws Incorporating Active Injury Mitigation Technology and Components Thereof; Notice of Request for Statements on the Public InterestPDF
81 FR 67003 - Welding, Cutting, and Brazing; Extension of the Office of Management of Budget's (OMB) Approval of Information Collection (Paperwork) RequirementsPDF
81 FR 67013 - Millennium Challenge Corporation Advisory Council Notice of Open MeetingPDF
81 FR 66923 - Meeting of the United States Travel and Tourism Advisory BoardPDF
81 FR 67013 - Membership of the National Endowment for the Arts Senior Executive Service Performance Review BoardPDF
81 FR 67046 - Notice of Submission Deadline for Schedule Information for Chicago O'Hare International Airport, John F. Kennedy International Airport, Los Angeles International Airport, Newark Liberty International Airport, and San Francisco International Airport for the Summer 2017 Scheduling SeasonPDF
81 FR 67057 - General Motors, LLC, Receipt of Petition for Decision of Inconsequential NoncompliancePDF
81 FR 67014 - Talen Energy Combined License Application for Bell Bend Nuclear Power PlantPDF
81 FR 66930 - Status of New Uniform Residential Loan Application and Collection of Expanded Home Mortgage Disclosure Act Information About Ethnicity and Race in 2017PDF
81 FR 66999 - Notice of Lodging of Proposed Consent Decree Under the Comprehensive Response, Compensation, and Liability ActPDF
81 FR 67004 - OSHA's Conflict of Interest and Disclosure Form; Extension of the Office of Management and Budget's (OMB) Approval of Information Collection (Paperwork) RequirementsPDF
81 FR 66920 - Notice of Public Meeting of the Kentucky Advisory Committee for a Meeting To Discuss Potential Project ProposalsPDF
81 FR 67008 - Advisory Committee on Construction Safety and Health (ACCSH)PDF
81 FR 66964 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
81 FR 67007 - Nemko North America, Inc.: Grant of Expansion of RecognitionPDF
81 FR 67001 - SGS North America, Inc.: Grant of Expansion of RecognitionPDF
81 FR 66842 - Endangered and Threatened Wildlife and Plants; Endangered Species Status for Chamaecrista lineata var. keyensis (Big Pine Partridge Pea), Chamaesyce deltoidea ssp. serpyllum (Wedge Spurge), and Linum arenicola (Sand Flax), and Threatened Species Status for Argythamnia blodgettii (Blodgett's Silverbush)PDF
81 FR 66957 - Panda Stonewall LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 66951 - Southwest Power Pool, Inc.; Notice of Institution of Section 206 Proceeding and Refund Effective DatePDF
81 FR 66952 - Combined Notice of Filings #2PDF
81 FR 66957 - Combined Notice of Filings #1PDF
81 FR 66928 - Nominations to the Marine Mammal Scientific Review GroupsPDF
81 FR 66966 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
81 FR 67046 - CSX Transportation, Inc.-Discontinuance of Service Exemption-in Pike County, KYPDF
81 FR 66919 - Notice of Intent To Grant Exclusive LicensePDF
81 FR 66950 - Submission for OMB Review; Comment RequestPDF
81 FR 66927 - Marine Mammals; File No. 20599PDF
81 FR 66911 - Endangered and Threatened Species; Designation of Critical Habitat for Five Distinct Population Segments of Atlantic Sturgeon; Reopening of Public Comment PeriodPDF
81 FR 66919 - Gallatin Resource Advisory CommitteePDF
81 FR 66991 - Proposed Roseburg Resources Co. Safe Harbor Agreement for the Northern Spotted Owl and Draft Environmental AssessmentPDF
81 FR 66999 - Meeting of the Compact Council for the National Crime Prevention and Privacy CompactPDF
81 FR 67015 - Agency Forms Submitted for OMB Review, Request for CommentsPDF
81 FR 66996 - Notice of Filing of Plats of Survey, New MexicoPDF
81 FR 66970 - Biosimilar User Fee Act; Public Meeting; CorrectionPDF
81 FR 66813 - Safety Zone; Temporary Change to Date and Location for Recurring Pittsburgh Steelers Fireworks Display Within the Eighth Coast Guard District, Pittsburgh, PAPDF
81 FR 66967 - Agency Information Collection Activities; Proposed Collection; Comment Request; Current Good Manufacturing Practice in Manufacturing, Packaging, Labeling, or Holding Operations for Dietary SupplementsPDF
81 FR 66929 - Fisheries of the U.S. Gulf of Mexico; Southeast Data, Assessment and Review (SEDAR); U.S. Gulf of Mexico Data-Limited SpeciesPDF
81 FR 66952 - North American Electric Reliability Corporation; Order Approving Reliability StandardsPDF
81 FR 66957 - Grand River Dam Authority; Notice of Application for Amendment of License and Soliciting Comments, Motions To Intervene, and ProtestsPDF
81 FR 66960 - Vote Solar Initiative, Montana Environmental Information Center v. Montana Public Service Commission; Notice of ComplaintPDF
81 FR 66959 - Transcontinental Gas Pipe Line Company, LLC; Notice of Intent To Prepare an Environmental Assessment for the Proposed Gulf Connector Expansion Project and Request for Comments on Environmental IssuesPDF
81 FR 66977 - National Maritime Security Advisory CommitteePDF
81 FR 66967 - Use of Nucleic Acid Tests To Reduce the Risk of Transmission of West Nile Virus From Living Donors of Human Cells, Tissues, and Cellular and Tissue-Based Products; Guidance for Industry; CorrectionPDF
81 FR 67014 - Product Change-Priority Mail Negotiated Service AgreementPDF
81 FR 67015 - Product Change-Priority Mail Negotiated Service AgreementPDF
81 FR 67015 - Product Change-Priority Mail Express and Priority Mail Negotiated Service AgreementPDF
81 FR 66807 - Drawbridge Operation Regulation; James River, Hopewell, VAPDF
81 FR 66808 - Drawbridge Operation Regulation; Inner Harbor Navigation Canal, New Orleans, LAPDF
81 FR 66965 - Agency Forms Undergoing Paperwork Reduction Act ReviewPDF
81 FR 67047 - Notice of Final Equal Employment Opportunity Program CircularPDF
81 FR 67051 - FY16 Discretionary Funding Opportunity: Low or No Emission Component Assessment Program (LoNo-CAP)PDF
81 FR 66924 - Trade Promotion Coordinating CommitteePDF
81 FR 67023 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Order Granting Approval of Proposed Rule Change Relating to TRACE Reporting and Dissemination of CMO TransactionsPDF
81 FR 67038 - Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt a Rule To Prohibit Disruptive Quoting and Trading Activity and Allow the Exchange To Take Prompt ActionPDF
81 FR 67016 - Self-Regulatory Organizations; Miami International Securities Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Its Fee Schedule To Modify the Exchange's Connectivity FeesPDF
81 FR 67033 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Order Granting Approval of a Proposed Rule Change To Amend Nasdaq Rule 5735 To Adopt Generic Listing Standards for Managed Fund SharesPDF
81 FR 67036 - Self-Regulatory Organizations; NYSE MKT LLC; Order Granting Approval of Proposed Rule Change, as Modified by Amendment No. 1 and Partial Amendment No. 2, Amending Exchange Rule 49 Regarding the Exchange's: (1) Emergency Powers; (2) Disaster Recovery Plans; and (3) Backup Systems and Mandatory TestingPDF
81 FR 67029 - Self-Regulatory Organizations; New York Stock Exchange LLC; Order Granting Approval of Proposed Rule Change, as Modified by Amendment No. 1 and Partial Amendment No. 2, Amending Exchange Rule 49 Regarding the Exchange's: (1) Emergency Powers; (2) Disaster Recovery Plans; and (3) Backup Systems and Mandatory TestingPDF
81 FR 67031 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Correct Rule 3.6APDF
81 FR 66999 - Notice of Lodging of Proposed Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability ActPDF
81 FR 67027 - Self-Regulatory Organizations; NYSE MKT LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Add to the Rules of the Exchange the Tenth Amended and Restated Operating Agreement of the New York Stock Exchange LLCPDF
81 FR 67019 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Nasdaq's Fees at Rule 7014(f)PDF
81 FR 66898 - Extension of Comment Period for Disclosure Update and SimplificationPDF
81 FR 66967 - Agency Information Collection Activities; Proposed Collection; Comment Request; University Centers for Excellence in Developmental Disabilities Education, Research, and Service-Annual ReportPDF
81 FR 66949 - Information Collection; Submission for OMB Review, Comment RequestPDF
81 FR 67056 - Notice of Availability of a Draft Environmental Assessment for Rulemaking To Require the Installation and Maintenance of Speed Limiting Devices in Heavy VehiclesPDF
81 FR 67044 - Northcreek Mezzanine Fund II, L.P.; Notice Seeking Exemption Under Section 312 of the Small Business Investment Act, Conflicts of InterestPDF
81 FR 67045 - Announcement of Funding Pool Size for the Growth Accelerator Fund CompetitionPDF
81 FR 67060 - Tribal Health Programs-Community Care ConsolidationPDF
81 FR 67045 - Montana Disaster #MT-00099 Declaration of Economic InjuryPDF
81 FR 67045 - California Disaster #CA-00256 Declaration of Economic InjuryPDF
81 FR 67044 - Kentucky Disaster #KY-00061PDF
81 FR 66963 - Open Commission Meeting, Thursday, September 29, 2016PDF
81 FR 66920 - Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment AssistancePDF
81 FR 66980 - Maryland; Major Disaster and Related DeterminationsPDF
81 FR 66981 - Final Flood Hazard DeterminationsPDF
81 FR 66994 - Agency Information Collection Activities: Request for CommentsPDF
81 FR 66983 - Changes in Flood Hazard DeterminationsPDF
81 FR 66865 - Fisheries of the Northeastern United States; Atlantic Bluefish Fishery; Quota TransferPDF
81 FR 66988 - Proposed Flood Hazard DeterminationsPDF
81 FR 66962 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; Information Collection Effort for Oil and Gas FacilitiesPDF
81 FR 67000 - Labor Surplus Area Classification Under Executive Orders 12073 and 10582PDF
81 FR 66989 - Endangered Species; Marine Mammals; Issuance of PermitsPDF
81 FR 66990 - Endangered Species; Marine Mammals; Receipt of Applications for PermitPDF
81 FR 66829 - Suspension of Community EligibilityPDF
81 FR 66978 - Proposed Flood Hazard DeterminationsPDF
81 FR 66998 - Certain Digital Models, Digital Data, and Treatment Plans for Use in Making Incremental Dental Positioning Adjustment Appliances, the Appliances Made Therefrom, and Methods of Making the Same Rescission of Cease and Desist Orders; Termination of an InvestigationPDF
81 FR 66976 - National Eye Institute; Notice of Closed MeetingPDF
81 FR 66975 - National Eye Institute; Notice of Closed MeetingPDF
81 FR 66976 - Center for Scientific Review Notice of Closed MeetingsPDF
81 FR 66900 - Federal Baseline Water Quality Standards for Indian ReservationsPDF
81 FR 66791 - OCC Guidelines Establishing Standards for Recovery Planning by Certain Large Insured National Banks, Insured Federal Savings Associations, and Insured Federal Branches; Technical AmendmentsPDF
81 FR 66815 - Repayment by VA of Educational Loans for Certain PsychiatristsPDF
81 FR 66822 - Domestic Mail Manual; Incorporation by ReferencePDF
81 FR 66821 - International Mail Manual; Incorporation by ReferencePDF
81 FR 66823 - Technical Correction to the National Ambient Air Quality Standards for Particulate MatterPDF
81 FR 66826 - Air Plan Approval; TN: Revisions to Logs and Reports for Startups, Shutdowns and MalfunctionsPDF
81 FR 66823 - Approval and Promulgation of Implementation Plans; Washington: General Regulations for Air Pollution SourcesPDF
81 FR 66899 - Approval and Promulgation of Implementation Plans; Washington: General Regulations for Air Pollution SourcesPDF
81 FR 66804 - Amendment to the International Traffic in Arms Regulations: Tunisia, Eritrea, Somalia, the Democratic Republic of the Congo, Liberia, Côte d'Ivoire, Sri Lanka, Vietnam, and Other ChangesPDF
81 FR 66972 - Announcement of Requirements and Registration for “The Simple Extensible Sampling Tool Challenge”PDF
81 FR 66801 - Airworthiness Directives; Gulfstream Aerospace Corporation AirplanesPDF
81 FR 66874 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 66872 - Airworthiness Directives; Airbus Defense and Space S.A. (Formerly Known as Construcciones Aeronauticas, S.A.) AirplanesPDF
81 FR 66866 - Supplemental Nutrition Assistance Program: 2008 Farm Bill Provisions on Clarification of Split Issuance; Accrual of Benefits and Definition ChangesPDF
81 FR 66877 - Incorporation by Reference of ICAO Annex 2; Removal of Outdated North Atlantic Minimum Navigation Performance SpecificationsPDF
81 FR 66881 - Safety Standard for Baby Changing ProductsPDF
81 FR 66830 - Service Rules Governing Narrowband Operations in the 769-775/799-805 MHz BandsPDF
81 FR 66833 - Exemption From Vehicle Theft Prevention StandardPDF
81 FR 67062 - Mercury and Air Toxics Standards (MATS) Completion of Electronic Reporting RequirementsPDF

Issue

81 189 Thursday, September 29, 2016 Contents Agency Agency for International Development NOTICES Meetings: Board for International Food and Agricultural Development, 66919 2016-23648 Agricultural Research Agricultural Research Service NOTICES Proposed Exclusive Licenses, 66919 2016-23534 Agriculture Agriculture Department See

Agricultural Research Service

See

Food and Nutrition Service

See

Forest Service

Consumer Financial Protection Bureau of Consumer Financial Protection NOTICES Requests for Information: New Uniform Residential Loan Application and Collection of Expanded Home Mortgage Disclosure Act Information about Ethnicity and Race in 2017, 66930-66949 2016-23555 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66965-66966 2016-23506 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66966 2016-23537 Civil Rights Civil Rights Commission NOTICES Meetings: Kentucky Advisory Committee, 66920 2016-23551 Coast Guard Coast Guard RULES Drawbridge Operations: Inner Harbor Navigation Canal, New Orleans, LA, 66808 2016-23507 James River, Hopewell, VA, 66807-66808 2016-23508 Keweenaw Waterway, Houghton and Hancock, MI, 66808-66810 2016-23576 Safety Zones: Monte Foundation Fireworks Extravaganza, Capitola, CA, 66810-66812 2016-23574 Temporary Change to Date and Location for Recurring Pittsburgh Steelers Fireworks Display within the Eighth Coast Guard District, Pittsburgh, PA, 66813-66815 2016-23522 NOTICES Meetings: National Maritime Security Advisory Committee, 66977-66978 2016-23515 Commerce Commerce Department See

Economic Development Administration

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Community Living Administration Community Living Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: University Centers for Excellence in Developmental Disabilities Education, Research, and Service—Annual Report, 66967 2016-23488 Comptroller Comptroller of the Currency RULES Guidelines: Establishing Standards for Recovery Planning by Certain Large Insured National Banks, Insured Federal Savings Associations, and Insured Federal Branches; Technical Amendments, 66791-66801 2016-23366 Consumer Product Consumer Product Safety Commission PROPOSED RULES Safety Standards: Baby Changing Products, 66881-66898 2016-22557 Corporation Corporation for National and Community Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66949 2016-23487 Meetings; Sunshine Act, 66949-66950 2016-23673 Defense Department Defense Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66950-66951 2016-23533 Charter Amendments, Establishments, or Renewals: U.S. Air Force Academy Board of Visitors, 66950 2016-23573 Economic Development Economic Development Administration NOTICES Trade Adjustment Assistance Eligibility; Petitions, 66920-66921 2016-23474 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66951 2016-23583 Employment and Training Employment and Training Administration NOTICES Labor Surplus Area Classification, 67000-67001 2016-23462 Energy Department Energy Department See

Federal Energy Regulatory Commission

Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Tennessee; Revisions to Logs and Reports for Startups, Shutdowns and Malfunctions, 66826-66829 2016-23302 Washington: General Regulations for Air Pollution Sources, 66823-66826 2016-23298 National Ambient Air Quality Standards for Particulate Matter; Technical Correction; Withdrawal, 66823 2016-23304 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Washington: General Regulations for Air Pollution Sources, 66899-66900 2016-23297 Federal Baseline Water Quality Standards: Indian Reservations, 66900-66911 2016-23432 Mercury and Air Toxics Standards: Completion of Electronic Reporting Requirements, 67062-67086 2016-21330 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66962-66963 2016-23463 Meetings: Chemical Assessment Advisory Committee Augmented for the Review of draft Hexahydro-1,3,5-trinitro-1,3,5-triazine (RDX) IRIS Assessment, 66961-66962 2016-23597 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Gulfstream Aerospace Corporation Airplanes, 66801-66804 2016-23091 PROPOSED RULES Airworthiness Directives: Airbus Defense and Space S.A. (Formerly Known as Construcciones Aeronauticas, S.A.) Airplanes, 66872-66874 2016-23085 The Boeing Company Airplanes, 66874-66877 2016-23088 Incorporation by Reference of International Civil Aviation Organization Annex 2; Removal of Outdated North Atlantic Minimum Navigation Performance Specifications, 66877-66881 2016-22798 NOTICES Submission Deadlines for Schedule Information: Chicago O'Hare International Airport, John F. Kennedy International Airport, Los Angeles International Airport, Newark Liberty International Airport, and San Francisco International Airport; Summer 2017, 67046-67047 2016-23563 Federal Bureau Federal Bureau of Investigation NOTICES Meetings: Compact Council for the National Crime Prevention and Privacy Compact, 66999 2016-23527 Federal Communications Federal Communications Commission RULES Narrowband Operations in the 769-775/799-805 MHz Bands; Service Rules, 66830-66833 2016-22432 NOTICES Meetings: Open Commission, 66963-66964 2016-23475 Federal Emergency Federal Emergency Management Agency RULES Suspensions of Community Eligibility, 66829-66830 2016-23459 NOTICES Emergency and Related Determinations: Flood Hazard Determinations; Proposals, 66978-66980 2016-23455 Flood Hazard Determinations, 66981-66989 2016-23465 2016-23470 2016-23472 Major Disasters and Related Determinations: Maryland, 66980-66981 2016-23473 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: Grand River Dam Authority, 66957-66958 2016-23518 Combined Filings, 66952, 66957 2016-23541 2016-23542 Complaints: Vote Solar Initiative, Montana Environmental Information Center v. Montana Public Service Commission, 66960-66961 2016-23517 Environmental Assessments; Availability, etc.: Gulf Connector Expansion Project, 66959-66960 2016-23516 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Panda Stonewall LLC, 66957 2016-23544 Orders Approving Reliability Levels: North American Electric Reliability Corporation, 66952-66956 2016-23519 Refund Effective Dates: Southwest Power Pool, Inc., 66951 2016-23543 Federal Motor Federal Motor Carrier Safety Administration NOTICES Environmental Assessments; Availability, etc.: Rulemaking to Require the Installation and Maintenance of Speed Limiting Devices in Heavy Vehicles, 67056-67057 2016-23486 Meetings; Sunshine Act, 67047 2016-23654 Federal Reserve Federal Reserve System NOTICES Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 66964-66965 2016-23549 Federal Transit Federal Transit Administration NOTICES Equal Employment Opportunity Program Circular, 67047-67051 2016-23505 Funding Opportunities: Low or No Emission Component Assessment Program, 67051-67056 2016-23504 Fish Fish and Wildlife Service RULES Endangered and Threatened Species: Chamaecrista lineata var. keyensis (Big Pine Partridge Pea), Chamaesyce deltoidea ssp. serpyllum (Wedge Spurge), Linum arenicola (Sand Flax), and Argythamnia blodgettii (Blodgett's Silverbush); Status, 66842-66865 2016-23546 NOTICES Environmental Assessments; Availability, etc.: Roseburg Resources Co. Safe Harbor Agreement for the Northern Spotted Owl, 66991-66994 2016-23528 Permit Applications: Endangered Species; Marine Mammals, 66989-66991 2016-23460 2016-23461 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Current Good Manufacturing Practice in Manufacturing, Packaging, Labeling, or Holding Operations for Dietary Supplements, 66967-66970 2016-23521 Guidance for Industry: Use of Nucleic Acid Tests to Reduce the Risk of Transmission of West Nile Virus From Living Donors of Human Cells, Tissues, and Cellular and Tissue-Based Products; Correction, 66967 2016-23514 Meetings: Biosimilar User Fee Act; Correction, 66970 2016-23523 Food and Nutrition Food and Nutrition Service PROPOSED RULES Supplemental Nutrition Assistance Program: 2008 Farm Bill Provisions on Clarification of Split Issuance; Accrual of Benefits and Definition Changes, 66866-66872 2016-22860 Forest Forest Service NOTICES Meetings: Gallatin Resource Advisory Committee, 66919-66920 2016-23529 Geological Geological Survey NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 66994-66995 2016-23471 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Community Living Administration

See

Food and Drug Administration

See

Health Resources and Services Administration

See

Inspector General Office, Health and Human Services Department

See

National Institutes of Health

Health Resources Health Resources and Services Administration NOTICES Petitions: National Vaccine Injury Compensation Program, 66970-66972 2016-23585 Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

Inspector General Health Inspector General Office, Health and Human Services Department NOTICES The Simple Extensible Sampling Tool Challenge Requirements and Registration, 66972-66975 2016-23124 Interior Interior Department See

Fish and Wildlife Service

See

Geological Survey

See

Land Management Bureau

Internal Revenue Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 67058-67060 2016-23591 2016-23593 2016-23596 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Welded Stainless Pressure Pipe from India, 66925-66927 2016-23575 Determinations of Sales at Less than Fair Value: Welded Stainless Pressure Pipe from India, 66921-66923 2016-23577 Meetings: Travel and Tourism Advisory Board, 66923-66924 2016-23567 Requests for Nominations: Trade Promotion Coordinating Committee, 66924-66925 2016-23501 International Trade Com International Trade Commission NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Hot-Rolled Steel Flat Products from Australia, Brazil, Japan, Korea, the Netherlands, Turkey, and the United Kingdom, 66996-66997 2016-23572 Investigations; Determinations, Modifications, and Rulings, etc.: Certain Table Saws Incorporating Active Injury Mitigation Technology and Components Thereof, 66997-66998 2016-23571 Digital Models, Digital Data, and Treatment Plans for Use in Making Incremental Dental Positioning Adjustment Appliances, the Appliances Made Therefrom, and Methods of Making the Same, 66998-66999 2016-23454 Justice Department Justice Department See

Federal Bureau of Investigation

NOTICES Consent Decrees: CERCLA, 66999-67000 2016-23492 2016-23554
Labor Department Labor Department See

Employment and Training Administration

See

Occupational Safety and Health Administration

Land Land Management Bureau NOTICES Meetings: Southeast Oregon Resource Advisory Council, 66995-66996 2016-23579 Plats of Surveys: New Mexico, 66996 2016-23524 Millenium Millennium Challenge Corporation NOTICES Meetings: Millennium Challenge Corporation Advisory Council, 67013 2016-23569 National Endowment for the Arts National Endowment for the Arts NOTICES Senior Executive Service Performance Review Board Membership, 67013 2016-23565 National Foundation National Foundation on the Arts and the Humanities See

National Endowment for the Arts

National Highway National Highway Traffic Safety Administration RULES Motor Vehicle Theft Prevention Standard; Exemptions, 66833-66842 2016-22061 NOTICES Environmental Assessments; Availability, etc.: Rulemaking to Require the Installation and Maintenance of Speed Limiting Devices in Heavy Vehicles, 67056-67057 2016-23486 Petitions for Decisions of Inconsequential Noncompliance: General Motors, LLC, 67057-67058 2016-23560 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 66976-66977 2016-23451 National Eye Institute, 66975-66976 2016-23452 2016-23453 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Northeastern United States: Atlantic Bluefish Fishery; Quota Transfer, 66865 2016-23469 PROPOSED RULES Endangered and Threatened Species: Designation of Critical Habitat for Five Distinct Population Segments of Atlantic Sturgeon, 66911-66912 2016-23530 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: Shrimp Fishery of the Gulf of Mexico; Bycatch Reduction Device Testing Manual, 66912-66918 2016-23600 NOTICES Meetings: Fisheries of the U.S. Gulf of Mexico; Southeast Data, Assessment and Review; U.S. Gulf of Mexico Data-Limited Species, 66929-66930 2016-23520 Permits: Marine Mammals; File No. 20599, 66927-66928 2016-23532 Requests for Nominations: Marine Mammal Scientific Review Groups, 66928-66929 2016-23540 National Transportation National Transportation Safety Board NOTICES Meetings; Sunshine Act, 67013-67014 2016-23683 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Combined License; Applications: Talen Energy; Bell Bend Nuclear Power Plant, 67014 2016-23556 Occupational Safety Health Adm Occupational Safety and Health Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Aerial Lifts Standard, 67006-67007 2016-23581 Conflict of Interest and Disclosure Form, 67004-67006 2016-23552 Student Data Form, 67010-67012 2016-23580 Welding, Cutting, and Brazing, 67003-67004 2016-23570 Expansions of Recognition: Nemko North America, Inc., 67007-67008 2016-23548 SGS North America, Inc., 67001-67003 2016-23547 Requests for Nominations: Advisory Committee on Construction Safety and Health, 67008-67010 2016-23550 State Plans for Change in Level of Federal Enforcement: Tennessee; Marine Construction, 67012-67013 2016-23582 Postal Service Postal Service RULES Domestic Mail Manual, 66822-66823 2016-23335 International Mail Manual, 66821-66822 2016-23334 NOTICES Product Changes: Priority Mail Express and Priority Mail Negotiated Service Agreement, 67015 2016-23509 Priority Mail Negotiated Service Agreement, 67014-67015 2016-23510 2016-23511 2016-23512 2016-23513 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: National Voter Registration Day (Proc. 9503), 67087-67090 2016-23779 Railroad Retirement Railroad Retirement Board NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 67015-67016 2016-23526 Securities Securities and Exchange Commission PROPOSED RULES Disclosure Update and Simplification, 66898-66899 2016-23489 NOTICES Meetings; Sunshine Act, 67027 2016-23697 Self-Regulatory Organizations; Proposed Rule Changes: Chicago Board Options Exchange, Inc., 67031-67033 2016-23493 Financial Industry Regulatory Authority, Inc., 67023-67027 2016-23499 International Securities Exchange, LLC, 67038-67044 2016-23498 Miami International Securities Exchange LLC, 67016-67019 2016-23497 New York Stock Exchange LLC, 67029-67031 2016-23494 NYSE MKT LLC, 67027-67029, 67036-67038 2016-23491 2016-23495 The NASDAQ Stock Market LLC, 67019-67023, 67033-67036 2016-23490 2016-23496 Suspension of Trading Orders: Accel Brands, Inc., 67027 2016-23696 Small Business Small Business Administration NOTICES Conflict of Interest Exemptions: Northcreek Mezzanine Fund II, L.P., 67044 2016-23485 Disaster Declarations: California; Declaration of Economic Injury, 67045 2016-23481 Kentucky, 67044-67045 2016-23476 Montana; Declaration of Economic Injury, 67045 2016-23482 Growth Accelerator Fund Competition: Funding Pool Sizes, 67045 2016-23484 State Department State Department RULES International Traffic in Arms: Tunisia, Eritrea, Somalia, the Democratic Republic of the Congo, Liberia, Cote d'Ivoire, Sri Lanka, Vietnam; Amendments and Other Changes, 66804-66807 2016-23284 Surface Transportation Surface Transportation Board NOTICES Discontinuance of Service Exemptions: CSX Transportation, Inc., Pike County, KY, 67046 2016-23535 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

See

Federal Transit Administration

See

National Highway Traffic Safety Administration

Treasury Treasury Department See

Comptroller of the Currency

See

Internal Revenue Service

Veteran Affairs Veterans Affairs Department RULES Repayment of Educational Loans for Certain Psychiatrists, 66815-66821 2016-23360 NOTICES Tribal Health Programs; Community Care Consolidation, 67060 2016-23483 Separate Parts In This Issue Part II Environmental Protection Agency, 67062-67086 2016-21330 Part III Presidential Documents, 67087-67090 2016-23779 Reader Aids

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81 189 Thursday, September 29, 2016 Rules and Regulations DEPARTMENT OF THE TREASURY Office of the Comptroller of the Currency 12 CFR Part 30 [Docket ID OCC-2015-0017] RIN 1557-AD96 OCC Guidelines Establishing Standards for Recovery Planning by Certain Large Insured National Banks, Insured Federal Savings Associations, and Insured Federal Branches; Technical Amendments AGENCY:

Office of the Comptroller of the Currency, Treasury.

ACTION:

Final rule and guidelines.

SUMMARY:

The Office of the Comptroller of the Currency (OCC) is adopting enforceable guidelines establishing standards for recovery planning by insured national banks, insured Federal savings associations, and insured Federal branches of foreign banks with average total consolidated assets of $50 billion or more (Final Guidelines). The OCC is issuing the Final Guidelines as an appendix to its safety and soundness standards regulations, and the Final Guidelines will be enforceable by the terms of the Federal statute that authorizes the OCC to prescribe operational and managerial standards for national banks and Federal savings associations. The OCC is also adopting technical changes to the safety and soundness standards regulations that are made necessary by the addition of the Final Guidelines.

DATES:

This final rule and guidelines are effective on January 1, 2017. The compliance dates for the Final Guidelines in Appendix E to part 30 vary, as specified below.

FOR FURTHER INFORMATION CONTACT:

Lori Bittner, Large Bank Supervision—Resolution and Recovery, (202) 649-6093; Stuart Feldstein, Director, Andra Shuster, Senior Counsel, Karen McSweeney, Counsel, or Priscilla Benner, Attorney, Legislative & Regulatory Activities Division, (202) 649-5490; or Valerie Song, Assistant Director, Bank Activities and Structure Division, (202) 649-5500; or, for persons who are deaf or hard of hearing, TTY, (202) 649-5597, 400 7th Street SW., Washington, DC 20219.

SUPPLEMENTARY INFORMATION:

Background

The financial crisis demonstrated the destabilizing effect that severe stress at large, complex, interconnected financial companies can have on the national economy, capital markets, and the overall financial stability of the banking system. Following the crisis, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act); 1 among other purposes, the Dodd-Frank Act was intended to strengthen the framework for the supervision and regulation of large U.S. financial companies in order to address the significant impact that these institutions can have on capital markets and the economy.

1 Public Law 111-203, 124 Stat. 1376 (July 21, 2010).

One lesson learned from the crisis is the importance—especially in large, complex financial institutions—of a strong risk governance framework. In 2014, the OCC formally adopted heightened standards guidelines that address the risk governance of large, complex banks (Heightened Standards).2 The Heightened Standards establish minimum standards for the design and implementation of a risk governance framework and for a bank's board of directors (board) in overseeing the framework's design and implementation. The OCC believes that these Heightened Standards further the goals of the Dodd-Frank Act by clarifying the OCC's expectation that its regulated institutions have robust practices in areas where the crisis revealed substantial weaknesses.

2 79 FR 54518 (Sept. 11, 2014) (OCC Guidelines Establishing Heightened Standards for Certain Large Insured National Banks, Insured Federal Savings Associations, and Insured Federal Branches; Integration of Regulations).

Further, in the aftermath of the crisis, it became clear that many financial institutions had insufficient plans for identifying and responding rapidly to significant stress events that affected their financial condition and threatened their viability. As a result, many institutions were forced to take significant actions quickly without the benefit of a well-developed plan. In addition, recent large-scale events, such as destructive cyber attacks, demonstrate the need for institutions to plan how to respond to the financial effects of such occurrences. Therefore, the OCC believes that a large, complex institution should undertake recovery planning to be able to respond quickly to and recover from the financial effects of severe stress on the institution.3 An institution's recovery planning should be a dynamic, ongoing process that complements its risk governance functions and supports its safe and sound operation. The process of developing and maintaining a recovery plan also should cause a covered bank's management and its board to enhance their focus on risk governance with a view toward lessening the negative impact of future events.

3 While the Dodd-Frank Act addresses resolution planning, it does not specifically address recovery planning.

In December 2015, the OCC invited public comment on proposed guidelines establishing minimum standards for recovery planning by insured national banks, insured Federal savings associations, and insured Federal branches of foreign banks (together, banks and each, a bank) with average total consolidated assets of $50 billion or more (together, covered banks and each, a covered bank).4 After carefully considering the comments we received on the proposed guidelines, the OCC is adopting these Final Guidelines as a new Appendix E to part 30 of our regulations. The OCC, as the primary financial regulatory agency for the covered banks, believes that the Final Guidelines will assist these banks with their recovery planning efforts, thereby minimizing the negative impact of severe stress. We have set forth below a detailed description of the proposal, the significant comments we received, and the standards contained in the Final Guidelines.

4 80 FR 78681 (Dec. 17, 2015).

Summary of Comments on the Notice of Proposed Rulemaking

The OCC received six comment letters on the proposed guidelines from national banks, trade associations, and individuals. To improve our understanding of the issues raised by commenters, the OCC had a meeting with two trade groups and a number of their member institutions, and a summary of this meeting is available on a public Web site.5

5See http://www.regulations.gov/index.jsp#!documentDetail;D=OCC-2015-0017-0001.

The comments we received generally supported the proposed guidelines, acknowledging that recovery planning is an important part of risk management and that the use of guidelines, rather than regulations, provides both covered banks and the OCC with appropriate flexibility. However, the commenters asked the OCC to clarify various provisions in the proposal. For example, commenters requested that the OCC address the ability of a covered bank to leverage other processes in developing its recovery plan and to tailor its plan based on the size, risk profile, and complexity of the bank. They also asked the OCC to clarify the role of the board with respect to the plan. In addition, commenters suggested that the OCC consider tiered compliance dates. As discussed more fully below, the OCC has revised the Final Guidelines in response to the comments we received and has made other technical and clarifying changes.

Enforcement of the Final Guidelines

The OCC is adopting these Final Guidelines pursuant to section 39 of the Federal Deposit Insurance Act (FDIA).6 Section 39 authorizes the OCC to prescribe safety and soundness standards in the form of a regulation or guidelines. The OCC currently has four sets of these guidelines that are appendices to part 30 of the OCC's regulations. Appendix A contains operational and managerial standards that relate to internal controls, information systems, internal audit systems, loan documentation, credit underwriting, interest rate exposure, asset growth, asset quality, earnings, compensation, fees, and benefits. Appendix B contains standards on information security, and Appendix C contains standards that address residential mortgage lending practices. Appendix D contains the Heightened Standards discussed above.

6 12 U.S.C. 1831p-1.

Section 39 prescribes different consequences depending on whether an agency issues the standards by regulation or guideline. Pursuant to section 39, if a bank 7 fails to meet a standard prescribed by regulation, the OCC must require it to submit a plan specifying the steps it will take to comply with the standard. If a bank fails to meet a standard prescribed by guidelines, the OCC has the discretion to decide whether to require the submission of a plan.8 The issuance of these standards as guidelines, rather than as regulations, provides the OCC with the flexibility to pursue the course of action that is most appropriate given the specific circumstances of a covered bank's noncompliance with one or more standards and the covered bank's self-corrective and remedial responses.

7 Section 39 of the FDIA applies to “insured depository institutions,” which, as defined in 12 U.S.C. 1813, includes insured Federal branches of foreign banks. While we do not specifically refer to these entities in this discussion of the enforcement of the Final Guidelines, it should be read to include them.

8See 12 U.S.C. 1831p-1(e)(1)(A)(i) and (ii).

The procedural rules implementing the supervisory and enforcement remedies prescribed by section 39 are contained in part 30 of the OCC's rules. Under these provisions, the OCC may initiate a supervisory or enforcement process when it determines, by examination or otherwise, that a bank has failed to meet the standards set forth in the Final Guidelines.9 Upon making that determination, the OCC may request in writing that the bank submit a compliance plan to the OCC detailing the steps the institution will take to correct the deficiencies and the time within which it will take those steps. This request is termed a Notice of Deficiency. Upon receiving a Notice of Deficiency from the OCC, the bank must submit a compliance plan to the OCC for approval within 30 days.

9 The procedures governing the determination and notification of failure to satisfy a standard prescribed pursuant to section 39; the filing and review of compliance plans; and the issuance of orders, if necessary, are set forth in the OCC's regulations at 12 CFR 30.3, 30.4, and 30.5.

If a bank fails to submit an acceptable compliance plan or fails in any material respect to implement a compliance plan approved by the OCC, the OCC shall issue a Notice of Intent to Issue an Order pursuant to section 39 (Notice of Intent). The bank then has 14 days to respond to the Notice of Intent. After considering the bank's response, the OCC may issue the order, decide not to issue the order, or seek additional information from the bank before making a final decision. Alternatively, the OCC may issue an order without providing the bank with a Notice of Intent. In such a case, the bank may appeal after-the-fact to the OCC, and the OCC has 60 days to consider the appeal. Upon the issuance of an order, a bank is deemed to be in noncompliance with part 30. Orders are formal, public documents, and the OCC may enforce them in Federal district court. The OCC may also assess a civil money penalty, pursuant to 12 U.S.C. 1818, against any bank that violates or otherwise fails to comply with any final order and against any institution-affiliated party who participates in such violation or noncompliance.

Detailed Description of the Proposed Guidelines, Comments Received, and Final Guidelines

Like the proposal, the Final Guidelines consist of three sections. Section I explains the scope of the Final Guidelines, sets forth the applicable compliance dates, and defines key terms. Section II sets forth the standards for the design and execution of a covered bank's recovery plan. Section III describes the responsibilities of a covered bank's management and board in connection with the bank's recovery plan.

Section I: Introduction

Scope. As proposed, the guidelines would have applied to any bank with “average total consolidated assets” equal to or greater than $50 billion as of the effective date of the guidelines (calculated by averaging a bank's total consolidated assets, as reported on the bank's Consolidated Reports of Condition and Income (Call Reports), for the four most recent consecutive quarters). The preamble to the proposal noted that this threshold is consistent with the scope of Federal Deposit Insurance Corporation (FDIC) and Board of Governors of the Federal Reserve System (Board) regulations that require certain entities to prepare resolution plans.10 We note that this threshold also is consistent with the Heightened Standards threshold, as well as the threshold used in section 165 of the Dodd-Frank Act for the application of enhanced prudential standards to bank holding companies and foreign banking organizations.

10See 12 CFR 381.2(f) and 243.2(f), respectively. See also 12 CFR 360.10.

The proposal provided that for any bank with average total consolidated assets less than $50 billion as of the effective date of the guidelines, whose average total consolidated assets subsequently reached $50 billion or greater, the guidelines would apply on the as-of date of the bank's most recent Call Report used in the calculation of the average total consolidated assets. Once a bank's average total consolidated assets had reached or exceeded the $50 billion threshold, the preamble explained that the bank would have had to comply with the guidelines, unless and until the OCC specifically determined that compliance was not required, even if the bank's average total consolidated assets subsequently fell below the $50 billion threshold.

The OCC received no comments on these provisions and adopts them as proposed.

Compliance date. Although the OCC did not propose a specific compliance date, several commenters requested a phased-in compliance period. Some commenters suggested a compliance date of 2017 for the largest, most complex covered banks and a subsequent compliance date of 2018 for the remaining covered banks. These commenters stated that the phase-in dates should account for the size, risk profile, and complexity of a covered bank. Other commenters requested an initial compliance date for all covered banks of no earlier than 2018. Another commenter suggested that the OCC use a flexible approach when setting a compliance date for banks that reach or exceed the $50 billion threshold after the effective date of the Final Guidelines.

The OCC agrees that a phased-in compliance period is appropriate and adopts the compliance schedule set forth below, which we believe gives covered banks, including those likely to have the least experience with recovery planning, sufficient time to prepare their plans. Under this schedule, a covered bank with average total consolidated assets equal to or greater than $750 billion on the effective date of these Final Guidelines should comply within 6 months of the effective date. A covered bank with average total consolidated assets equal to or greater than $100 billion but less than $750 billion on the effective date should comply within 12 months of the effective date. A covered bank with average total consolidated assets equal to or greater than $50 billion but less than $100 billion on the effective date should comply within 18 months of the effective date. Finally, a bank with less than $50 billion in average total consolidated assets on the effective date, which subsequently becomes a covered bank, should comply with the Final Guidelines within 18 months of becoming a covered bank.

Reservation of authority. In order to preserve supervisory flexibility, the proposed guidelines reserved the OCC's authority to apply the guidelines to a bank with average total consolidated assets of less than $50 billion if the agency determined that the bank's operations were highly complex or otherwise presented a heightened risk. The preamble explained that the OCC expected to use this authority infrequently and did not intend to apply the guidelines to community banks. The proposed guidelines also reserved the OCC's authority to determine that compliance with the guidelines was no longer required for a covered bank whose operations no longer were highly complex or otherwise no longer presented a heightened risk.

In either case, when determining whether a bank's or covered bank's operations were highly complex or otherwise presented a heightened risk, the proposed guidelines stated that the OCC would consider an institution's size, risk profile, activities, and complexity, including the complexity of its organizational and legal entity structure. The guidelines also stated that, when exercising the authority reserved by this provision, the OCC would apply notice and response procedures consistent with those set out in 12 CFR 3.404.11

11 As explained in the proposal, these procedures require the OCC to provide a bank or covered bank, as appropriate, with written notice of its determination to use its reservation of authority, and the bank or covered bank would have 30 days to respond in writing. The proposal provided that the OCC would consider the failure of a bank or covered bank to respond within this 30-day period to be a waiver of any objections. At the conclusion of the 30 days, the proposed guidelines stated that the OCC would issue a written notice of its final determination.

Commenters had no substantive comments on this subsection. However, we have added “scope of operations” to the factors that we will consider in determining whether a bank's or covered bank's operations are highly complex or otherwise present a heightened risk. Otherwise, the OCC is adopting these provisions as proposed and reiterates that we expect to use this authority infrequently and do not intend to apply the Final Guidelines to community banks.

Preservation of existing authority. The proposed guidelines stated that neither section 39 of the FDIA nor the OCC's part 30 rules in any way limited the authority of the OCC to address unsafe or unsound practices or conditions or other violations of law.12 We received no comments on this provision, and we are adopting it as proposed.

12 Section 39 preserves all authority otherwise available to the OCC, stating “The authority granted by this section is in addition to any other authority of the Federal banking agencies.” See 12 U.S.C. 1831p-1(g).

Definitions. The proposed guidelines included definitions of “average total consolidated assets,” “bank,” “covered bank,” “recovery,” “recovery plan,” and “trigger.” The proposal defined the term “recovery” to mean timely and appropriate action that a covered bank takes to remain a going concern when it is experiencing or is likely to experience considerable financial or operational distress and provided that a covered bank in recovery had not yet deteriorated to the point where liquidation or resolution is imminent. The proposal defined “recovery plan” as a plan that identified triggers and options for a covered bank to respond to a wide range of severe internal and external stress scenarios and to restore a covered bank that is in recovery to financial and operational strength and viability in a timely manner while maintaining the confidence of market participants. This definition further stated that neither the plan nor the options could assume or rely on any extraordinary government support.

The proposal defined “trigger” as a “quantitative or qualitative indicator of the risk or existence of severe stress that should always be escalated to management or the board, as appropriate, for purposes of initiating a response.” It stated that the breach of any trigger should result in timely notice, accompanied by sufficient information, to enable management of the covered bank to take corrective action.

The OCC received one comment regarding references to the “operational” effects of severe stress in the proposal. The commenter stated that a covered bank's recovery plan should address the effects of operational stress events (e.g., cyber events, natural disasters, unanticipated changes in senior management) only to the extent that such stress events affect the bank's financial strength and viability. The commenter noted that a covered bank addresses the operational effects of stress events in its other risk management plans (e.g., disaster recovery, business continuity). The commenter also stated that the Final Guidelines would be inconsistent with Board, Financial Stability Board, and European Banking Authority recovery planning provisions if they stated that a covered bank's recovery plan should address the operational effects of severe stress. The OCC agrees—a recovery plan should address the financial, not the operational, effects of severe stress.

The proposal defined the term “recovery plan” to include restoring a covered bank's “financial and operational strength and viability.” The same commenter noted that the purpose of a recovery plan is to help a covered bank restore its financial, not its operational, strength and viability. The commenter stated that covered banks address the restoration of operational strength and viability in other risk management plans (e.g., disaster recovery, business continuity). The OCC agrees and has revised the definition of “recovery plan” by removing “and operational” to clarify that the purpose of a recovery plan is to help a covered bank restore its financial strength and viability. While a recovery plan might address operational stress scenarios and identify recovery options that are operational in nature, the triggers in the recovery plan should alert the bank to the possible or actual financial effects of stress, and the recovery options should be designed to restore the bank's financial strength and viability. We made conforming changes throughout the document to reflect this change.

The proposal prohibited reliance on extraordinary government support in a recovery plan. The OCC received a comment asking it to clarify how this prohibition would apply when a foreign government controls a covered bank. While we have not changed the prohibition set forth in the definition of “recovery plan,” the OCC acknowledges that exceptions to this prohibition may exist with respect to support of a covered bank by a foreign government. We recommend that an affected covered bank discuss this situation with its OCC examiner.

The OCC received no other comments on these definitions. We have clarified, however, several terms defined in the Final Guidelines. First, we revised the definition of “covered bank” to reflect the proposal's preamble statement that “covered bank” includes a bank with average total consolidated assets of less than $50 billion if it was previously a covered bank, unless the OCC determines otherwise. Second, we changed the word “distress” in the definition of “recovery” to “stress.” While the term “distress” can be used to describe either stress itself or the effect of stress, we intended in this context to refer to stress itself. Third, we revised the definition of “trigger” to clarify that the breach of a trigger, not the trigger itself, should be escalated and that the escalation should be to senior management. Finally, we have clarified that a trigger breach can be escalated to either the board or an appropriate committee of the board,13 and we have made conforming changes throughout the document where necessary to address the role of an appropriate committee of the board. Except as otherwise noted above, we are adopting these definitions as proposed.

13 We received a comment requesting that the OCC be flexible in applying provisions of the Final Guidelines referencing the board or an appropriate committee of the board to Federal branches, which do not have boards of directors. In applying the Final Guidelines to insured Federal branches that are covered banks, OCC examiners will consult with the branch to determine the appropriate person or committee to undertake the responsibilities assigned to the board of directors or an appropriate committee of the board under the Final Guidelines.

Section II: Recovery Plan

A. Recovery plan. Subsection A of the proposal stated that each covered bank should develop and maintain a recovery plan appropriate for its individual size, risk profile, activities, and complexity, including the complexity of its organizational and legal entity structure. In response to this statement, commenters requested that the OCC clarify its expectations with regard to the length and detail of recovery plans and asked that the Final Guidelines elaborate on a covered bank's ability to tailor its recovery plan to its particular operations.

We note that a covered bank's recovery plan need only be as long and as detailed as is necessary to satisfy these Final Guidelines. The OCC does not have any expectations regarding a plan's length or detail, nor does it expect that recovery plans will mirror the length or detail of resolution plans. Further, the OCC agrees that a covered bank may tailor its recovery plan to its unique size, risk profile, activities, and complexity. Therefore, a smaller, less complex bank may have a shorter, less complex recovery plan. The stress scenarios, triggers, and recovery options appropriate for a covered bank that engages primarily in retail and commercial banking are likely to be different from those for a covered bank that engages in significant trading or capital market activities. Those appropriate for a covered bank that engages primarily in domestic activities are likely to be different from those for a covered bank with extensive foreign activities. For the sake of clarity, we have added language to this description stating that a recovery plan should be specific to the unique characteristics of each covered bank. We have otherwise adopted this subsection as proposed.

B. Elements of recovery plan. Subsection B set forth the eight elements of a recovery plan.

1. Overview of covered bank. The proposed guidelines stated that a recovery plan should include a detailed description of the covered bank's overall organizational and legal structure, including its material entities, critical operations, core business lines, and core management information systems. The proposal stated that this description should explain interconnections and interdependencies: (i) Across business lines within the covered bank; (ii) with affiliates in a bank holding company structure; (iii) between a covered bank and its foreign subsidiaries; and (iv) with critical third parties. As explained in the proposal's preamble, the OCC used the terms “interconnections” and “interdependencies” in a manner consistent with FDIC and Board resolution plan regulations. The preamble cited the following as examples of interconnections and interdependencies: (i) Relationships with respect to credit exposures, investments, or funding commitments; (ii) guarantees including an acceptance, endorsement, or letter of credit issued for the benefit of an affiliate during normal periods, as opposed to during a crisis; and (iii) payment services, treasury operations, collateral management, information technology (IT), human resources (HR), and other operational functions. It explained that the plan should address whether a disruption of these interconnections or interdependencies would materially affect the covered bank and, if so, how.

Commenters asked the OCC to confirm in the Final Guidelines that other terms, including “material entities,” “critical operations,” and “core business lines,” may be interpreted consistent with the use of those terms elsewhere, such as resolution planning regulations and Heightened Standards. The OCC confirms that a covered bank may include in its recovery plan concepts and terms used elsewhere, provided the bank's resulting recovery plan is consistent with the Final Guidelines. In order to facilitate the OCC's understanding of a covered bank's recovery planning process, a bank's recovery plan should indicate which key terms are drawn from other sources and identify the sources. Otherwise, we adopt this element as proposed.

2. Triggers. The proposal stated that a recovery plan should identify triggers that appropriately reflected a covered bank's particular vulnerabilities. As explained in the preamble, in order for a covered bank to identify such triggers, the bank should design severe stress scenarios that would threaten its critical operations or cause it to fail if the bank did not implement one or more recovery options in a timely manner. The preamble further explained that these scenarios should range from those that cause significant hardship to those that bring the covered bank close to default, but not into resolution.

As explained in the proposal, in designing stress scenarios, a covered bank should consider a range of bank-specific and market-wide scenarios, individually and in the aggregate, that are immediate and prolonged. The proposal explained that a covered bank should design the stress scenarios to result in capital shortfalls, liquidity pressures, or other significant financial losses. The preamble included as examples of bank-specific stress scenarios: Fraud; a portfolio shock; a significant cyber attack 14 or other wide-scale operational event; an accounting and tax issue; an event that caused a reputational crisis and degraded customer or market confidence; and other key stresses that management identified. Although not mentioned in the proposal, another example of a covered bank-specific stress scenario is the failure of the bank's parent company or a significant affiliate.

14 As explained in the proposal, a significant cyber attack includes an event that has an impact on a covered bank's computer network(s) or the computer network(s) of one of its third-party service providers and that significantly undermines the covered bank's data or processes.

Examples of market-wide stress scenarios included: A disruption of domestic or global financial markets; a failure or impairment of systemically important financial industry participants, critical financial market infrastructure firms, and critical third-party relationships; significant changes in debt or equity valuations, currency rates, or interest rates; the widespread interruption of critical infrastructure that significantly degraded operational capability; 15 and other unfavorable economic conditions. It should also be noted that stress scenarios are important tools that a covered bank uses to determine areas of vulnerability and to help it identify the appropriate triggers. While they need not be included in the plan itself, they are a critical part of the planning process and should be documented for OCC examiners to consider and discuss with a covered bank as part of the agency's overall evaluation of a bank's plan.

15 As explained in the proposal, an example of this type of interruption includes a disruption to a payment, clearing, or settlement system that significantly affects the covered bank's ability to access that system.

With respect to the development of stress scenarios, commenters requested that the Final Guidelines not require a covered bank to develop stress scenarios other than those required for supervisory stress tests (i.e., Comprehensive Capital Analysis and Review (CCAR) and Dodd-Frank Act Stress Testing (DFAST)). We recognize that the scenarios used to conduct supervisory stress tests may be appropriate for purposes of identifying triggers under these Final Guidelines. However, a covered bank should evaluate those scenarios in the context of these Final Guidelines and consider whether different or additional scenarios are appropriate, including whether these specific scenarios are sufficiently severe to cause the bank to be in recovery—i.e., scenarios that bring the bank to the brink of resolution.

The proposal's discussion of the triggers that a covered bank should include in its recovery plan explained that these triggers should address a continuum of increasingly severe stress, ranging from triggers that provide a warning of the likely occurrence of severe stress to those that indicate the actual existence of severe stress. It stated that the number and nature of triggers should be appropriate for the covered bank's size, risk profile, activities, and complexity. As the proposal further explained, the nature of a trigger should inform the nature of the response. For example, the preamble stated that, in some situations, the appropriate response to the breach of a trigger should be enhanced monitoring; in other situations, the breach of a trigger should result in activating a more specific recovery option set forth in the plan or taking other corrective action. As the proposal noted, however, the breach of a particular trigger does not necessarily correspond to a single recovery option; instead, more than one option may be appropriate when a particular trigger is breached.

The preamble to the proposal stated that quantitative triggers included changes in covered bank-specific indicators that reflect the covered bank's capital or liquidity position. The proposal stated that a covered bank should also consider quantitative triggers other than capital or liquidity that may have an impact on its condition, such as a rating downgrade; access to credit and borrowing lines; equity ratios; profitability; asset quality; or other macroeconomic indicators. It also noted that a covered bank should be prepared to act if it is at risk, regardless of whether a trigger has been breached or the recovery plan includes options that specifically addressed the problems the bank faced.

The proposal also stated that qualitative triggers would include the unexpected departure of senior leadership; the erosion of reputation or market standing; the impact of an adverse legal ruling; and a material operational event that affects the covered bank's ability to access critical services or to deliver products or services to its customers for a material period of time. In retrospect, we believe these scenarios more accurately describe stress events that may affect a covered bank's financial strength and viability than triggers that indicate the stress. However, while we anticipate that most triggers will be quantitative indicators, we have retained the reference to qualitative indicators that have a financial effect on a bank to allow for those that a bank may identify.

The proposal noted that a covered bank should review and update its triggers, as necessary, to take into account changes in laws and regulations and other material events. In addition, it stated that a covered bank should consider any regulatory or legal consequences resulting from the breach of a particular trigger. We made no changes to this element and adopt it as proposed.

3. Options for recovery. The proposed guidelines stated that a recovery plan should identify a wide range of credible options that a covered bank could undertake to restore its financial and operational strength and viability, thereby allowing the bank to continue to operate as a going concern and avoid liquidation or resolution. The proposed guidelines further provided that a recovery plan should explain how the covered bank would carry out each recovery option, describe the timing for each option, and identify options that require regulatory or legal approval.

The preamble to the proposal explained that the recovery plan should include a description of the decision-making process for implementing each option, outline the steps the bank will follow, identify the critical parties to carry out each option, and address timing considerations. It also stated that a recovery plan should identify obstacles to executing an option and set out mitigation strategies to address these obstacles. Finally, the preamble provided that the plan should identify those options that would require regulatory or legal approval and, consistent with the proposal's definition of “recovery plan,” that neither the plan nor the options may assume or rely on any extraordinary government support.16

16 The role of extraordinary governmental support in the recovery plans of covered banks that are controlled by a foreign government is discussed above.

The preamble noted that a covered bank should be able to execute plan options within time frames that would allow the options to be effective during periods of stress. It also provided examples of recovery options, including the conservation or restoration of liquidity and capital; the sale, transfer, or disposal of significant assets, portfolios, or business lines; steps that reduce the covered bank's risk profile; the restructuring of liabilities; the activation of emergency protocols; organizational restructuring, including divesting legal entities in order to simplify the covered bank's structure; and implementing succession planning. To facilitate an understanding of how the stress scenarios, triggers, and options relate to each other, the proposal included the following chart:

Examples of severe
  • stress scenarios
  • Possible triggers Possible options in
  • response to triggers
  • Idiosyncratic stress: Trading losses caused by a rogue trader • Tier 1 capital falls below 6%.
  • • Liquidity falls below internal bank policy requirements
  • • Issue new capital.
  • • Sell nonstrategic assets or businesses.
  • • Reduce loan originations or commitments.
  • Systemic stress: Significant decline in U.S. gross domestic product, coupled with an increase in the U.S. unemployment rate and a deterioration in U.S. residential housing market • Short-term credit rating falls below A-3.
  • • Nonperforming loans rise above a specified percentage
  • • Market capitalization falls below a specific limit for a certain period of time
  • • Sell strategic assets or businesses.
  • • Reduce expenses (e.g., business contractions).
  • • Access the Board's Discount Window.
  • As discussed above, the OCC has clarified that the recovery options detailed in a recovery plan are those that respond to the financial effects of severe stress. To effect this clarification in this element of the plan, we have removed “and operational” from the description of the options for recovery in the Final Guidelines. We otherwise adopt this element as proposed. The OCC also notes that a covered bank should not view the options in its plan as exclusive or a specific trigger as necessitating the execution of a particular option. Rather, a covered bank should use its judgment to determine the most appropriate options for the bank to take during a period of severe stress.

    4. Impact assessments. The proposed guidelines provided that, for each recovery option, a covered bank should assess and describe how the option would affect the covered bank. The guidelines stated that this impact assessment and description should specify the procedures the covered bank would use to maintain the financial and operational strength and viability of its material entities, critical operations, and core business lines for each recovery option. For each option, the recovery plan's impact assessment should address: (i) The effect on the covered bank's capital, liquidity, funding, and profitability; (ii) the effect on its material entities, critical operations, and core business lines, including reputational impact; and (iii) any legal or market impediment or regulatory requirement that the bank would need to address or satisfy to implement the option.17

    17 Although not mentioned in the proposal, we note that a covered bank's assessment of the legal or market impediments or regulatory requirements relevant to its recovery options should address any timing issues presented by these impediments or requirements.

    As the preamble explained, the assessment should analyze the effect each option would have on the covered bank, including its internal operations (e.g., IT systems, suppliers, HR operations) and its access to market infrastructure (e.g., clearing and settlement facilities, payment systems, additional collateral requirements). The OCC received no comments on this provision. Consistent with the discussion above, however, we have removed “and operational.” Otherwise, we make no material changes to this element as proposed.

    5. Escalation procedures. The proposed guidelines stated that a recovery plan should clearly outline the process for escalating decision-making to senior management or the board, as appropriate, in response to the breach of a trigger. The proposal also stated that the plan should identify the departments and persons responsible for making and executing these decisions and describe the process for informing stakeholders (e.g., shareholders, counsel, accountants, regulators) when necessary. As the preamble explained, at a minimum, the escalation procedures should result in the covered bank taking action before remedial supervisory action is necessary.

    The OCC received no substantive comments on this element of the plan. However, we have clarified that the breach of any trigger should be escalated, which is consistent with the definition of “trigger.” In addition, we have clarified that the recovery plan should identify the departments and persons responsible for executing the decisions of senior management or the board (or an appropriate committee of the board). Otherwise, we have adopted this element as proposed.

    6. Management reports. The proposed guidelines stated that a recovery plan should require reports that provide management or the board with sufficient data and information to make timely decisions regarding the appropriate actions necessary to respond to the breach of a trigger. As explained in the preamble, the reports to management or the board should allow them to monitor the covered bank's progress in response to the actions taken under the recovery plan. The OCC received no comments on this element of the plan. As a clarification, however, the OCC has amended the Final Guidelines to state that reports should be made to senior management. Otherwise, we adopt the language as proposed.

    7. Communication procedures. As provided in the proposed guidelines, a recovery plan should provide that the covered bank notify the OCC of any significant breach of a trigger and any action taken or to be taken in response to such breach and explain the process for deciding when a breach of a trigger is significant. The preamble noted that a covered bank should work closely with the OCC when executing its recovery plan.

    The proposal also stated that a recovery plan should address when and how the covered bank will notify persons within the organization and other external parties of its actions under the recovery plan. This notice is to ensure that all stakeholders are informed in a timely manner of how the covered bank has responded or is responding to a breach of a trigger. In addition, the proposed guidelines stated that the recovery plan should identify how the covered bank would obtain required regulatory or legal approvals, in order to ensure that the bank receives such approval(s) in a timely manner. The OCC received no comments on this element of a recovery plan, and we adopt it as proposed.

    8. Other information. As set forth in the proposed guidelines, a recovery plan should include any other information that the OCC communicates in writing directly to the covered bank regarding the bank's recovery plan. The preamble also stated that a well-developed recovery plan should consider relevant information included in other written OCC or Federal Financial Institutions Examination Council material. The OCC received no comments on this element of a recovery plan, and we adopt it as proposed.

    C. Relationship to other processes; coordination with other plans. The proposed guidelines stated that a covered bank should integrate its recovery plan into its corporate governance and risk management functions and coordinate its recovery planning with its strategic; operational (including business continuity); contingency; capital (including stress testing); liquidity; and resolution planning. As the OCC explained in the preamble, in many cases, these plans may be interconnected and require the covered bank to coordinate among them.

    The proposed guidelines also stated that, to the extent possible, a covered bank should align its recovery plan with any recovery and resolution planning efforts by the covered bank's holding company, so that the plans are consistent with and do not contradict each other. As the OCC stated in the preamble, some inconsistencies may be unavoidable because recovery planning and resolution planning differ: Recovery planning addresses a bank as a going concern; resolution planning starts from the point of an entity's non-viability. In addition, the preamble noted that covered banks are an integral part of bank holding company recovery and resolution plans; as a result, it stated that a covered bank might be able to leverage certain elements in these other plans. As an example, the proposal referenced resolution plans, which typically require a bank to map its critical operations. It noted that this mapping exercise might be useful to the bank's recovery plan description of interconnections and interdependencies.

    The OCC received several comments on this element of the plan requesting the OCC to confirm that covered banks are permitted to leverage existing processes, such as those for stress testing, resolution planning, contingency planning, risk governance, and holding company recovery plans, when developing recovery plans. One commenter requested that the Final Guidelines permit a covered bank to use its holding company's recovery plan to satisfy its obligations under the Final Guidelines, if the risk profiles of both entities are substantially the same. Another commenter asserted that a covered bank should be permitted to leverage its existing governance structure to satisfy its management and board responsibilities under these Final Guidelines.

    As explained in the preamble to the proposal, the OCC recognizes that many covered banks already engage in significant planning, including planning responses to cyber attacks, business interruptions, and leadership vacancies. Some banks also undertake a range of other planning, including strategic, contingency, capital (including stress testing), liquidity, and resolution. The same is true for their parent holding companies or affiliates. As also noted in the proposal, we do not intend for the recovery planning described in these Final Guidelines to be needlessly burdensome or duplicative of these other planning processes. The OCC expects, however, that a covered bank's recovery plan will identify the recovery strategies that are specific to that bank and, as appropriate, distinguishable from the recovery strategies of its holding company or affiliates. Furthermore, while we encourage covered banks to leverage their existing processes, including by incorporating or cross-referencing portions or elements of relevant plans, in most cases, it is unlikely that a covered bank will be able to use a plan prepared for another purpose or entity to satisfy the Final Guidelines.18 As we have noted previously, the purpose of these Final Guidelines is to provide a comprehensive framework for evaluating how severe stress would financially affect a covered bank specifically and the recovery options that would allow that bank to remain viable under such stress.

    18 When a covered bank comprises a substantial percentage of its holding company's assets (i.e., 95%), the holding company's recovery plan, if any, may serve as the bank's recovery plan, provided that such plan satisfies these Final Guidelines.

    The OCC is making several changes to this provision as proposed. First, we have revised this subsection so that the Final Guidelines themselves state that a covered bank's recovery plan should be specific to the unique characteristics of that bank. Second, we are clarifying that the other plans identified in the proposed guidelines with which a covered bank should coordinate its recovery planning is not an exclusive list. Instead, these are examples of other types of plans. Third, we are replacing the phrase “risk management and corporate governance” with “risk governance,” which we believe incorporates the concepts of both risk management and corporate governance as it relates to risk management. Other than these and other minor changes, we adopt this provision as proposed.

    Section III: Management's and the Board's Responsibilities

    Section III of the proposed guidelines addressed the responsibilities of a covered bank's management and board with respect to the recovery plan and stated that these responsibilities should be included in the bank's recovery plan.

    The proposed guidelines provided that management should review its bank's recovery plan at least annually and in response to a material event. It further stated that management should revise the plan as necessary to reflect material changes in the covered bank's size, risk profile, activities, and complexity, as well as changes in external threats. The preamble explained that during this review, management should consider the ongoing relevance and applicability of the stress scenarios used to identify the plan's triggers and revise the recovery plan as needed.

    The proposed guidelines also stated that management's review should include evaluating the covered bank's organizational structure and its effectiveness in facilitating recovery. The preamble explained that this review should include its legal structure, number of entities, geographical footprint, booking practices (e.g., guarantees, exposures), and servicing arrangements. The preamble stated that both management and the board should provide justification for the covered bank's organizational and legal structures and outline changes that would enhance their ability to oversee the covered bank in times of stress. As explained in the preamble, a more rational legal structure can provide a clearer path to recovery and the operational flexibility necessary to implement a recovery plan.

    Several commenters requested that the OCC recognize the need for a covered bank to have flexibility regarding the timing of management's annual review of its recovery plan. These commenters explained that this flexibility would facilitate a covered bank's ability to meet deadlines associated with other requirements, such as stress testing. The OCC agrees that management should have flexibility to conduct its annual reviews on its preferred schedule. As noted in the proposal, OCC examiners will assess the appropriateness and adequacy of the covered bank's ongoing recovery planning process as part of the agency's regular supervisory activities, which we believe will provide covered banks with the flexibility they need.

    Commenters also requested the OCC to clarify that it is not necessary for management to recommend changes to a covered bank's organizational and legal entity structure as part of every annual review of the bank's recovery plan. The OCC agrees that a covered bank's management should only recommend changes to a bank's organizational and legal entity structure when such changes are necessary or appropriate.

    The proposed guidelines also stated that the board is responsible for overseeing the covered bank's recovery planning process. As part of this oversight, the preamble explained that the board should work closely with the bank's senior management in developing and executing the recovery plan. The proposed guidelines also stated that a covered bank's board, or an appropriate committee of the board, should review and approve the bank's recovery plan at least annually and as needed to address any changes made by management.

    A number of commenters expressed concern that the preamble's use of “developing and executing” to describe a covered bank board's role with respect to a recovery plan is inconsistent with a board's traditional oversight role. It is not the OCC's intent to expand the board's role, and we note that the regulatory text in both the proposal and Final Guidelines describe the role of the board as “oversight.”

    Commenters also asked the OCC to clarify that a covered bank's board need only review and approve a bank's plan yearly, and as necessary to address significant, as opposed to all, changes to a plan. We have amended the Final Guidelines to reflect this and otherwise adopt this section as proposed.

    Description of Technical Amendments to Part 30

    We also are including with these Final Guidelines technical and conforming amendments to the part 30 regulations to add references to new Appendix E, which contains the Final Guidelines, where appropriate.

    Regulatory Analysis Paperwork Reduction Act

    The OCC has determined that the Final Guidelines include collections of information pursuant to the provisions of the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.). In accordance with PRA, the OCC may not conduct or sponsor, and an organization is not required to respond to, an information collection unless the information collection displays a currently valid Office of Management and Budget (OMB) control number. The OCC submitted the information collections contained in the proposed guidelines to OMB for review and approval, pursuant to 44 U.S.C. 3506 and section 1320.11 of the OMB implementing regulations (5 CFR part 1320). OMB instructed the OCC to examine any public comments it received in response to the proposed PRA estimate and to describe in the supporting statement of its next collection any relevant comments, as well as the OCC's response to such comments. The OCC has re-submitted the information collections to OMB in connection with the final rule.

    The collections of information that are subject to the PRA in these Final Guidelines are found in 12 CFR part 30, appendix E, sections II.B., II.C., and III. Section II.B. of this appendix specifies the elements of the recovery plan, including an overview of the covered bank; triggers; options for recovery; impact assessments; escalation procedures; management reports; and communication procedures. Section II.C. of this appendix addresses the relationship of the plan to other covered bank processes and coordination with other plans, including the processes and plans of its bank holding company. Section III of this appendix outlines management's and the board's responsibilities.

    We received one comment on our proposed information collection from an individual, which addressed all four of the questions below. First, the commenter argued that a stress event that threatens the viability of a covered bank is the result of either an event that the bank could not have foreseen or failed prudential supervision by the OCC. In either case, the commenter argued, a recovery plan will be useless. In addition, this commenter argued that if a covered bank treats its recovery plan like a prescriptive playbook, the plan will fail and, alternatively, if a recovery plan only provides guidelines, the plan will have no practical utility.

    In response, as noted above, the OCC believes that stress scenarios are important tools that a covered bank uses to determine areas of vulnerability and help it identify the appropriate triggers. The OCC understands that a covered bank's recovery planning process will not result in a plan that identifies every trigger and option for every possible scenario—but we do believe that the processes of recovery planning and codification of a plan will help a covered bank manage the stresses it encounters. With respect to the role of a recovery plan during a period of severe stress, as noted above, a covered bank should use its judgment to determine the most appropriate options for the bank to take to preserve its financial strength and viability.

    The commenter also stated that the OCC's burden estimate was too low. The OCC believes that its original estimate was realistic given the requirements of the proposed guidelines and has included the same estimate in the Final Guidelines. We have adjusted, however, the estimate of respondents to reflect the most recent data available.

    In addition, the commenter stated that the agency could enhance the quality and utility of the information collection by requiring only triggers and response options in its plans. In response, as noted above, the OCC believes that stress scenarios are important tools that a covered bank uses to determine areas of vulnerability and identify appropriate triggers. We include the overview of the covered bank as a plan element because a covered bank's organizational and legal entity structure is likely to change often; its inclusion will both ensure that the bank consider the entire organization in the development of its plan and assist the bank in understanding the recovery plan's relationship with its other planning efforts.

    The commenter also stated that the proposed information collection is duplicative of and redundant to information that the OCC currently collects. In response, the OCC recognizes that some information necessary for recovery planning may have been compiled or provided to the OCC for other purposes. However, we believe that it is necessary for a covered bank to assemble this information in the context of recovery planning in order to develop an appropriate plan to respond to future stresses. We encourage, however, covered banks to leverage, including by cross-referencing if appropriate, this prior work. Finally, the commenter argued that it is burdensome to ask a covered bank to connect its recovery plan with its other plans. In response, the OCC notes that a covered bank's various plans are not intended to operate in a vacuum and must be compatible with each other in order to be effective.

    Title: OCC Guidelines Establishing Standards for Recovery Planning by Certain Large Insured National Banks, Insured Federal Savings Associations, and Insured Federal Branches

    OMB Control No.: To be assigned by OMB.

    Frequency of Response: On occasion.

    Affected Public: Businesses or other for-profit organizations.

    Burden Estimates:

    Total Number of Respondents: 25.

    Total Burden per Respondent: 7,543 hours.

    Total Burden for Collection: 188,575 hours.

    Comments should be submitted as provided below and continue to be invited on: (1) Whether the proposed collection of information is necessary for the proper performance of the OCC's functions, including whether the information has practical utility; (2) the accuracy of the OCC's estimate of the burden of the proposed information collection, including the cost of compliance; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of information collection on respondents, including through the use of automated collection techniques or other forms of IT.

    Because paper mail may be subject to delay, commenters are encouraged to submit comments by email to [email protected], if possible. Alternatively, comments may be mailed to Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, Attention: 1557-0321, 400 7th Street SW., Suite 3E-218, Mail Stop 9W-11, Washington, DC 20219 or faxed to (571) 465-4326. Additionally, commenters should send a copy of their comments to the OCC's OMB desk officer by: mail to Office of Information and Regulatory Affairs, U.S. Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW., Washington, DC 20503; fax to (202) 395-6974; or email to [email protected]

    You may personally inspect and photocopy comments at the OCC, 400 7th Street SW., Washington, DC 20219. For security reasons, the OCC requires that visitors make an appointment to inspect comments. You may do so by calling (202) 649-6700. Upon arrival, visitors will be required to present valid government-issued photo identification and submit to a security screening.

    All comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not enclose any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure.

    You may request additional information on the collection from Shaquita Merritt, Program Specialist, at (202) 649-6302 or, for persons who are deaf or hard of hearing, TTY, (202) 649-5597, Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 400 7th Street SW., Suite 3E-218, Mail Stop 9W-11, Washington, DC 20219.

    Regulatory Flexibility Analysis

    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b) (RFA), the regulatory flexibility analysis otherwise required under section 603 of the RFA is not required if the agency certifies that a rule will not have a significant economic impact on a substantial number of small entities (defined for purposes of the RFA to include commercial banks and savings institutions with assets less than or equal to $550 million and trust companies with assets less than or equal to $38.5 million) and publishes this certification and a short, explanatory statement in the Federal Register with the rule. The OCC has determined that the Final Guidelines will have no impact on small entities. The Final Guidelines apply only to insured national banks, insured Federal savings associations, and insured Federal branches of foreign banks with $50 billion or more in average total consolidated assets. Although the Final Guidelines reserve the OCC's authority to apply them to an insured national bank, insured Federal savings association, or insured Federal branch of a foreign bank with less than $50 billion in average total consolidated assets if the OCC determines such entity is highly complex or otherwise presents a heightened risk, the OCC does not expect to determine any small entities to be highly complex or otherwise to present a heightened risk. Therefore, the OCC certifies that these Final Guidelines will not have a significant economic impact on a substantial number of small entities.

    Unfunded Mandates Reform Act Analysis

    In accordance with section 202 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532), the OCC prepares a budgetary impact statement before promulgating any rule that includes a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (adjusted annually for inflation). The OCC has determined that these Final Guidelines will not result in expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (adjusted annually for inflation). Accordingly, the OCC has not prepared a budgetary impact statement.

    Consideration of Administrative Burdens and Benefits and Effective Date

    Section 302(a) of the Riegle Community Development and Regulatory Improvement Act of 1994 (CDRI) (12 U.S.C. 4802(a)) requires the OCC, in determining the effective date and administrative compliance requirements for new regulations that impose additional reporting, disclosure, or other requirements on insured depository institutions, to consider, consistent with the principles of safety and soundness and the public interest, (1) any administrative burdens that such regulations would place on depository institutions, including small depository institutions and customers of depository institutions; and (2) the benefits of such regulations. In determining the effective date and administrative compliance requirements for these Final Guidelines, the OCC has considered these burdens and benefits, including the requests of commenters for a phased-in compliance period. To this end, the Final Guidelines include phased-in compliance dates and recognize the need for flexibility with respect to the timing of management's annual recovery plan review.

    Section 302(b) of CDRI (12 U.S.C. 4802(a)) requires that new OCC regulations, which impose additional reporting, disclosures, or other new requirements on insured depository institutions, take effect on the first day of a calendar quarter which begins on or after the date on which the regulations are published in final form, subject to certain exceptions not relevant here. This is in addition to the requirement in section 553(d) (5 U.S.C. 553(d)) of the Administrative Procedure Act, which requires that a substantive rule be effective no fewer than 30 days after its publication, subject to certain exceptions not relevant here. The effective date of these Final Guidelines is consistent with these requirements.

    List of Subjects in 12 CFR Part 30

    Banks, Banking, Consumer protection, National banks, Privacy, Safety and soundness, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, and under the authority of 12 U.S.C. 93a, chapter I of title 12 of the Code of Federal Regulations is amended as follows:

    PART 30—SAFETY AND SOUNDNESS STANDARDS 1. The authority citation for part 30 continues to read as follows: Authority:

    12 U.S.C. 1, 93a, 371, 1462a, 1463, 1464, 1467a, 1818, 1828, 1831p-1, 1881-1884, 3102(b) and 5412(b)(2)(B); 15 U.S.C. 1681s, 1681w, 6801, and 6805(b)(1).

    § 30.1 [Amended]
    2. Section 30.1 is amended by removing, in paragraph (a), “appendices A, B, C, and D” and adding in its place “appendices A, B, C, D, and E”. 3. Section 30.2 is amended by adding a sentence at the end of the paragraph to read as follows:
    § 30.2 Purpose.

    * * * The OCC Guidelines Establishing Standards for Recovery Planning by Certain Large Insured National Banks, Insured Federal Savings Associations, and Insured Federal Branches are set forth in appendix E to this part.

    § 30.3 [Amended]
    4. Section 30.3 is amended in paragraph (a) by removing “the OCC Guidelines Establishing Standards for Residential Mortgage Lending Practices set forth in appendix C to this part, or the OCC Guidelines Establishing Heightened Standards for Certain Large Insured National Banks, Insured Federal Savings Associations, and Insured Federal Branches set forth in appendix D to this part” and adding in its place “the OCC Guidelines Establishing Standards for Residential Mortgage Lending Practices set forth in appendix C to this part, the OCC Guidelines Establishing Heightened Standards for Certain Large Insured National Banks, Insured Federal Savings Associations, and Insured Federal Branches set forth in appendix D to this part, or the OCC Guidelines Establishing Standards for Recovery Planning by Certain Large Insured National Banks, Insured Federal Savings Associations, and Insured Federal Branches set forth in appendix E to this part”. 5. Appendix E is added to part 30 to read as follows: Appendix E to Part 30—OCC Guidelines Establishing Standards for Recovery Planning by Certain Large Insured National Banks, Insured Federal Savings Associations, and Insured Federal Branches Table of Contents I. Introduction A. Scope B. Compliance date C. Reservation of authority D. Preservation of existing authority E. Definitions II. Recovery Plan A. Recovery plan B. Elements of recovery plan 1. Overview of covered bank 2. Triggers 3. Options for recovery 4. Impact assessments 5. Escalation procedures 6. Management reports 7. Communication procedures 8. Other information C. Relationship to other processes; coordination with other plans III. Management's and Board of Directors' Responsibilities A. Management B. Board of directors I. Introduction

    A. Scope. This appendix applies to a covered bank, as defined in paragraph I.E.3. of this appendix.

    B. Compliance date.

    1. A covered bank with average total consolidated assets, calculated according to paragraph I.E.1. of this appendix, equal to or greater than $750 billion as of January 1, 2017 should comply with this appendix within 6 months from January 1, 2017.

    2. A covered bank with average total consolidated assets, calculated according to paragraph I.E.1. of this appendix, equal to or greater than $100 billion but less than $750 billion as of January 1, 2017 should comply with this appendix within 12 months from January 1, 2017.

    3. A covered bank with average total consolidated assets, calculated according to paragraph I.E.1. of this appendix, equal to or greater than $50 billion but less than $100 billion as of January 1, 2017 should comply with this appendix within 18 months from January 1, 2017.

    4. A bank with average total consolidated assets, calculated according to paragraph I.E.1. of this appendix, of less than $50 billion as of January 1, 2017 but which subsequently becomes a covered bank should comply with this appendix within 18 months of becoming a covered bank.

    C. Reservation of authority.

    1. The OCC reserves the authority:

    a. To apply this appendix, in whole or in part, to a bank that has average total consolidated assets of less than $50 billion, if the OCC determines such bank is highly complex or otherwise presents a heightened risk that warrants the application of this appendix; or

    b. To determine that compliance with this appendix should not be required for a covered bank. The OCC will generally make this determination if a covered bank's operations are no longer highly complex or no longer present a heightened risk.

    2. In determining whether a bank or covered bank is highly complex or presents a heightened risk, the OCC will consider the bank's size, risk profile, scope of operations, activities, and complexity, including the complexity of its organizational and legal entity structure. Before exercising the authority reserved by paragraph I.C.1. of this appendix, the OCC will apply notice and response procedures in the same manner and to the same extent as the notice and response procedures in 12 CFR 3.404.

    D. Preservation of existing authority. Neither section 39 of the Federal Deposit Insurance Act (12 U.S.C.1831p-1) nor this appendix in any way limits the authority of the OCC to address unsafe or unsound practices or conditions or other violations of law. The OCC may take action under section 39 and this appendix independently of, in conjunction with, or in addition to any other enforcement action available to the OCC.

    E. Definitions.

    1. Average total consolidated assets means the average total consolidated assets of the bank or the covered bank, as reported on the bank's or the covered bank's Consolidated Reports of Condition and Income for the four most recent consecutive quarters.

    2. Bank means any insured national bank, insured Federal savings association, or insured Federal branch of a foreign bank.

    3. Covered bank means any bank:

    a. With average total consolidated assets equal to or greater than $50 billion;

    b. With average total consolidated assets of less than $50 billion if the bank was previously a covered bank, unless the OCC determines otherwise; or

    c. With average total consolidated assets less than $50 billion, if the OCC determines that such bank is highly complex or otherwise presents a heightened risk as to warrant the application of this appendix pursuant to paragraph I.C.1.a. of this appendix.

    4. Recovery means timely and appropriate action that a covered bank takes to remain a going concern when it is experiencing or is likely to experience considerable financial or operational stress. A covered bank in recovery has not yet deteriorated to the point where liquidation or resolution is imminent.

    5. Recovery plan means a plan that identifies triggers and options for responding to a wide range of severe internal and external stress scenarios to restore a covered bank that is in recovery to financial strength and viability in a timely manner. The options should maintain the confidence of market participants, and neither the plan nor the options may assume or rely on any extraordinary government support.

    6. Trigger means a quantitative or qualitative indicator of the risk or existence of severe stress, the breach of which should always be escalated to senior management or the board of directors (or appropriate committee of the board of directors), as appropriate, for purposes of initiating a response. The breach of any trigger should result in timely notice accompanied by sufficient information to enable management of the covered bank to take corrective action.

    II. Recovery Plan

    A. Recovery plan. Each covered bank should develop and maintain a recovery plan that is specific to that covered bank and appropriate for its individual size, risk profile, activities, and complexity, including the complexity of its organizational and legal entity structure.

    B. Elements of recovery plan. A recovery plan under paragraph II.A. of this appendix should include the following elements:

    1. Overview of covered bank. A recovery plan should describe the covered bank's overall organizational and legal entity structure, including its material entities, critical operations, core business lines, and core management information systems. The plan should describe interconnections and interdependencies (i) across business lines within the covered bank, (ii) with affiliates in a bank holding company structure, (iii) between a covered bank and its foreign subsidiaries, and (iv) with critical third parties.

    2. Triggers. A recovery plan should identify triggers that appropriately reflect the covered bank's particular vulnerabilities.

    3. Options for recovery. A recovery plan should identify a wide range of credible options that a covered bank could undertake to restore financial strength and viability, thereby allowing the bank to continue to operate as a going concern and to avoid liquidation or resolution. A recovery plan should explain how the covered bank would carry out each option and describe the timing required for carrying out each option. The recovery plan should specifically identify the recovery options that require regulatory or legal approval.

    4. Impact assessments. For each recovery option, a covered bank should assess and describe how the option would affect the covered bank. This impact assessment and description should specify the procedures the covered bank would use to maintain the financial strength and viability of its material entities, critical operations, and core business lines for each recovery option. For each option, the recovery plan's impact assessment should address the following:

    a. The effect on the covered bank's capital, liquidity, funding, and profitability;

    b. The effect on the covered bank's material entities, critical operations, and core business lines, including reputational impact; and

    c. Any legal or market impediment or regulatory requirement that must be addressed or satisfied in order to implement the option.

    5. Escalation procedures. A recovery plan should clearly outline the process for escalating decision-making to senior management or the board of directors (or an appropriate committee of the board of directors), as appropriate, in response to the breach of any trigger. The recovery plan should also identify the departments and persons responsible for executing the decisions of senior management or the board of directors (or an appropriate committee of the board of directors).

    6. Management reports. A recovery plan should require reports that provide senior management or the board of directors (or an appropriate committee of the board of directors) with sufficient data and information to make timely decisions regarding the appropriate actions necessary to respond to the breach of a trigger.

    7. Communication procedures. A recovery plan should provide that the covered bank notify the OCC of any significant breach of a trigger and any action taken or to be taken in response to such breach and should explain the process for deciding when a breach of a trigger is significant. A recovery plan also should address when and how the covered bank will notify persons within the organization and other external parties of its action under the recovery plan. The recovery plan should specifically identify how the covered bank will obtain required regulatory or legal approvals.

    8. Other information. A recovery plan should include any other information that the OCC communicates in writing directly to the covered bank regarding the covered bank's recovery plan.

    C. Relationship to other processes; coordination with other plans. The covered bank should integrate its recovery plan into its risk governance functions. The covered bank also should align its recovery plan with its other plans, such as its strategic; operational (including business continuity); contingency; capital (including stress testing); liquidity; and resolution planning. The covered bank's recovery plan should be specific to that covered bank. The covered bank also should coordinate its recovery plan with any recovery and resolution planning efforts by the covered bank's holding company, so that the plans are consistent with and do not contradict each other.

    III. Management's and Board of Directors' Responsibilities

    The recovery plan should address the following management and board responsibilities:

    A. Management. Management should review the recovery plan at least annually and in response to a material event. It should revise the plan as necessary to reflect material changes in the covered bank's size, risk profile, activities, and complexity, as well as changes in external threats. This review should evaluate the organizational structure and its effectiveness in facilitating a recovery.

    B. Board of directors. The board is responsible for overseeing the covered bank's recovery planning process. The board of directors (or an appropriate committee of the board of directors) of a covered bank should review and approve the recovery plan at least annually, and as needed to address significant changes made by management.

    Dated: September 21, 2016. Thomas J. Curry, Comptroller of the Currency.
    [FR Doc. 2016-23366 Filed 9-28-16; 8:45 am] BILLING CODE 4810-33-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9116; Directorate Identifier 2016-NM-130-AD; Amendment 39-18672; AD 2016-20-06] RIN 2120-AA64 Airworthiness Directives; Gulfstream Aerospace Corporation Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule; request for comments.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all Gulfstream Aerospace Corporation Model G-1159, G-1159A, G-1159B, and G-IV airplanes. This AD requires revision of the maintenance or inspection program to establish the life limit of all elevator assemblies and skins on affected airplanes. This AD was prompted by the need to establish life limits for certain elevator assemblies and skins. We are issuing this AD to prevent failure of the elevator assembly and consequent loss of control of the airplane.

    DATES:

    This AD is effective October 14, 2016.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of September 23, 2016 (81 FR 61987, September 8, 2016).

    We must receive comments on this AD by November 14, 2016.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-493-2251.

    Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this final rule, contact Gulfstream Aerospace Corporation, Technical Publications Dept., P.O. Box 2206, Savannah, GA 31402-2206; telephone 800-810-4853; fax 912-965-3520; email [email protected]; Internet http://www.gulfstream.com/product_support/technical_pubs/pubs/index.htm. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9116.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9116; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    William O. Herderich, Aerospace Engineer, Airframe Branch, ACE-117A, FAA, Atlanta Aircraft Certification Office (ACO), 1701 Columbia Avenue, College Park, Georgia 30337; phone: 404-474-5547; fax: 404-474-5606; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    We have determined that it is necessary to establish life limits for certain elevator assemblies and skins. Certain elevator assemblies and skins were reidentified with numbers not listed in the life limits section of the airplane maintenance manual. As a result, the life limit requirement was inadvertently removed. An airplane with an elevator assembly or skin that has exceeded its life limit could experience elevator failure and loss of control. We are issuing this AD to correct the unsafe condition on these products.

    Related Service Information Under 1 CFR Part 51

    We reviewed the following temporary revisions (TRs):

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

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

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

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

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

    FAA's Determination

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

    AD Requirements

    This AD requires revising the maintenance or inspection program, as applicable, to establish life limits for certain elevator assemblies and skins.

    Due to a delay in defining and developing the corrective action that will address the identified unsafe condition, some elevator assemblies may exceed their life limits soon. Because we have determined that exceeding those life limits can result in loss of airplane control, we have determined that it is necessary to issue this AD without notice and opportunity for prior public comment. We consider 30 days the maximum amount of time for operators to revise their maintenance or inspection programs without compromising safety.

    FAA's Justification and Determination of the Effective Date

    An unsafe condition exists that requires the immediate adoption of this AD. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because failure of the elevator could result in loss of control of the airplane. Therefore, we find that notice and opportunity for prior public comment are impracticable and that good cause exists for making this amendment effective in less than 30 days.

    Comments Invited

    This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2016-9116 and Directorate Identifier 2016-NM-130-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD because of those comments.

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

    Costs of Compliance

    We estimate that this AD affects 596 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Maintenance/inspection program revision 1 work-hour × $85 per hour = $85 $0 $85 $50,660
    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-20-06 Gulfstream Aerospace Corporation: Amendment 39-18672; Docket No. FAA-2016-9116; Directorate Identifier 2016-NM-130-AD. (a) Effective Date

    This AD is effective October 14, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all Gulfstream Aerospace Corporation Model G-1159, G-1159A, G-1159B, and G-IV airplanes, certificated in any category.

    (d) Subject

    Air Transport Association (ATA) of America Code 27, Flight controls.

    (e) Unsafe Condition

    This AD was prompted by the need to establish life limits for elevator assemblies and skins. We are issuing this AD to prevent failure of the elevator assembly and consequent loss of control of the airplane.

    (f) Compliance

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

    (g) Revision of Maintenance/Inspection Program

    Within 30 days after the effective date of this AD, revise the maintenance or inspection program, as applicable, to incorporate the life limits identified in paragraphs (g)(1) through (g)(4) of this AD, as applicable. The initial compliance time to replace the elevator assembly and skins, as specified in the temporary revision (TR), is as specified in the applicable TR, or within 30 days after the effective date of this AD, or within 10 flight cycles after the effective date of this AD, whichever occurs latest.

    (1) For Model G-1159 airplanes: Life limits for elevator skin part numbers 1159CS20002 and 1159SB30209 as specified in Gulfstream II Maintenance Manual TR 5-3, dated April 15, 2016.

    (2) For Model G-1159B airplanes: Life limits for elevator part number 1159SB30209 as specified in Gulfstream IIB Maintenance Manual TR 5-3, dated April 15, 2016.

    (3) For Model G-1159A airplanes: Life limit for elevator part number 1159SB30209 as specified in Gulfstream III Maintenance Manual TR 5-2, dated April 15, 2016.

    (4) For Model G-IV airplanes: Life limit for elevator part number 1159SB40518 as specified in Gulfstream IV Maintenance Manual TR 5-7, dated April 29, 2016.

    (h) No Alternative Actions and Intervals

    After the maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (e.g., inspections) or intervals may be used unless the actions or intervals are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (j) of this AD.

    (i) Special Flight Permit

    A special flight permit may be issued in accordance with sections 21.197 and 21.199 of the Federal Aviation Regulations (14 CFR 21.197 and 21.199) to operate the airplane, for one flight only, to a location where the elevator assembly can be replaced, as required by paragraph (g) of this AD.

    (j) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Atlanta Aircraft Certification Office, 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) of this AD.

    (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.

    (k) Related Information

    For more information about this AD, contact William O. Herderich, Aerospace Engineer, Airframe Branch, ACE-117A, FAA, Atlanta Aircraft Certification Office (ACO), 1701 Columbia Avenue, College Park, Georgia 30337; phone: 404-474-5547; fax: 404-474-5606; email: [email protected]

    (l) Material Incorporated by Reference

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

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

    (3) The following service information was approved for IBR on September 23, 2016 (81 FR 61987, September 8, 2016).

    (i) Gulfstream II Maintenance Manual TR 5-3, dated April 15, 2016.

    (ii) Gulfstream IIB Maintenance Manual TR 5-3, dated April 15, 2016.

    (iii) Gulfstream III Maintenance Manual TR 5-2, dated April 15, 2016.

    (iv) Gulfstream IV Maintenance Manual TR 5-7, dated April 29, 2016.

    (4) For service information identified in this AD, contact Gulfstream Aerospace Corporation, Technical Publications Dept., P.O. Box 2206, Savannah, GA 31402-2206; telephone 800-810-4853; fax 912-965-3520; email [email protected]; Internet http://www.gulfstream.com/product_support/technical_pubs/pubs/index.htm.

    (5) 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.

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

    Issued in Renton, Washington, on September 15, 2016. Suzanne Masterson, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-23091 Filed 9-28-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF STATE 22 CFR Parts 120 and 126 [Public Notice: 9602] RIN 1400-AD95 Amendment to the International Traffic in Arms Regulations: Tunisia, Eritrea, Somalia, the Democratic Republic of the Congo, Liberia, Côte d'Ivoire, Sri Lanka, Vietnam, and Other Changes AGENCY:

    Department of State.

    ACTION:

    Interim final rule.

    SUMMARY:

    The Department of State is amending the International Traffic in Arms Regulations (ITAR) to designate Tunisia as a major non-NATO ally (MNNA); reorganize the content in several paragraphs to clarify the intent of the ITAR; update defense trade policy regarding Eritrea, Somalia, the Democratic Republic of the Congo, Liberia, and Côte d'Ivoire to reflect resolutions adopted by the United Nations Security Council; update defense trade policy regarding Sri Lanka to reflect the Consolidated Appropriations Act, 2016; and update defense trade policy regarding Vietnam to reflect a determination made by the Secretary of State.

    DATES:

    The rule is effective on September 29, 2016. The Department of State will accept comments on this interim final rule until October 31, 2016.

    ADDRESSES:

    Interested parties may submit comments within 30 days of the date of publication by one of the following methods:

    Email: [email protected] with the subject line, “ITAR Amendment—Section 126.1 Re-organization.”

    Internet: At www.regulations.gov, search for docket number DOS-2016-0059.

    Comments received after that date may be considered, but consideration cannot be assured. Those submitting comments should not include any personally identifying information they do not desire to be made public or information for which a claim of confidentiality is asserted because those comments and/or transmittal emails will be made available for public inspection and copying after the close of the comment period via the Directorate of Defense Trade Controls Web site at www.pmddtc.state.gov. Parties who wish to comment anonymously may do so by submitting their comments via www.regulations.gov, leaving the fields that would identify the commenter blank and including no identifying information in the comment itself. Comments submitted via www.regulations.gov are immediately available for public inspection.
    FOR FURTHER INFORMATION CONTACT:

    Mr. C. Edward Peartree, Director, Office of Defense Trade Controls Policy, U.S. Department of State, telephone (202) 663-2792, or email [email protected] ATTN: Regulatory Change, ITAR Section 126.1 Update 2016.

    SUPPLEMENTARY INFORMATION:

    In Presidential Determination No. 2015-09, on July 10, 2015, President Obama exercised his authority under § 517 of the Foreign Assistance Act of 1961 (FAA) to designate Tunisia as a MNNA for the purposes of the FAA and the Arms Export Control Act (AECA). The Department of State amends ITAR § 120.32 to reflect this change.

    Paragraphs (a), (c), and (d) of § 126.1 of the ITAR are updated to enhance their clarity. The fundamental content of the aforementioned paragraphs is not changing, but is reorganized in this rule by subject matter. The lists of proscribed countries were previously in multiple paragraphs, but are now consolidated in paragraph (d). Provisions relevant to the rationale for defense trade sanctions, previously located in paragraphs (a), (c), and (d) are now consolidated in paragraph (c). Section 126.18 of the ITAR is amended to maintain conformity with revised paragraph (d) of ITAR § 126.1.

    Recent actions by the United Nations (UN), Congress, and the Executive require the Department to amend ITAR § 126.1 to reflect the change in policy towards individual nations identified in that section.

    On October 23, 2015, the United Nations Security Council (UNSC) adopted United Nations Security Council Resolution (UNSCR) 2244, which reaffirmed the arms embargoes on Eritrea and Somalia. Exemptions from the arms embargo on Somalia are set forth in paragraphs 6 through 11 of UNSCR 2111 and paragraphs 2 through 9 of UNSCR 2142. Thus subparagraphs (1) and (2) of § 126.1(m) of the ITAR have been revised to reflect this change, and subparagraphs (3) through (6) are added to reflect new exceptions for Somalia as enumerated in UNSCR 2111. The revised control text follows the language as published in the aforementioned UNSCRs.

    Exemptions from the arms embargo on Eritrea are set forth in paragraphs 12 and 13 of UNSCR 2111; consequently, Eritrea will be moved to paragraph (h) of § 126.1. The revised control text follows the language as published in the aforementioned UNSCRs. The Department modifies paragraph (h) of ITAR § 126.1 accordingly.

    On June 23, 2016, the UNSC adopted Resolution 2293, which expanded the exemptions from the arms embargo on the Democratic Republic of the Congo. Exemptions from the arms embargo are set forth in paragraph 3 of the UNSCR. The revised control text follows the language as published in the aforementioned UNSCR. The Department modifies paragraph (i) of ITAR § 126.1 accordingly.

    On May 25, 2016, the UNSC adopted Resolution 2288, which terminated the sanctions regime against Liberia, including restrictions on exports to Liberia of arms and related materiel. The Department reserves paragraph (o) to remove Liberia from ITAR § 126.1.

    On April 28, 2016 the UNSC adopted Resolution 2283, which terminated the sanctions regime against Côte d'Ivoire, including restrictions on exports to Côte d'Ivoire of arms and related materiel. The Department reserves paragraph (q) to remove Côte d'Ivoire from ITAR § 126.1.

    Licensing restrictions relating to Sri Lanka articulated in section 7044(e) of the Consolidated Appropriations Act, 2015, Public Law 113-235, and in previous appropriations acts, were not carried forward in section 7044(e) of the Consolidated Appropriations Act, 2016, Public Law 114-113. Therefore, the Department reserves paragraph (n) to remove Sri Lanka from ITAR § 126.1.

    The Secretary of State lifted the ban on lethal weapons sales to Vietnam in May 2016. Accordingly, the Department reserves paragraph (l) and the associated note to remove Vietnam from ITAR § 126.1.

    For more information, please visit the Directorate of Defense Trade Controls (DDTC) internet Web site at https://www.pmddtc.state.gov/.

    Request for Comments

    The Department invites public comment regarding the organization and clarity of paragraphs (a), (c), and (d) of ITAR § 126.1, as set forth in this rulemaking. Comments regarding the foreign policy of the United States as described herein are outside of the scope of this request.

    Regulatory Analysis and Notices Administrative Procedure Act

    The Department of State is of the opinion that controlling the import and export of defense articles and services is a foreign affairs function of the United States Government and that rules implementing this function are exempt from sections 553 (rulemaking) and 554 (adjudications) of the Administrative Procedure Act. Since this rule is exempt from 5 U.S.C. 553, the provisions of § 553(d) do not apply to this rulemaking. Therefore, this rule is effective upon publication. The Department also finds that, given the national security issues surrounding U.S. policy towards the aforementioned countries, there is good cause for the effective date of this rule to be the date of publication, as provided by 5 U.S.C. 553(d)(3).

    Regulatory Flexibility Act

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

    Unfunded Mandates Reform Act of 1995

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

    Small Business Regulatory Enforcement Fairness Act of 1996

    The Department does not believe this rulemaking is a major rule within the definition of 5 U.S.C. 804.

    Executive Orders 12372 and 13132

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

    Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributed impacts, and equity). These executive orders stress the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department has determined that the benefits of this rulemaking outweigh any cost to the public, which the Department believes will be minimal. This rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB).

    Executive Order 12988

    The Department of State reviewed this rulemaking in light of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

    Executive Order 13175

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

    Paperwork Reduction Act

    This rule does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

    List of Subjects in 22 CFR Parts 120 and 126

    Arms and munitions, Exports.

    Accordingly, for the reasons set forth above, Title 22, Chapter I, Subchapter M, parts 120 and 126 are amended as follows:

    PART 120—PURPOSE AND DEFINITIONS 1. The authority citation for part 120 continues to read as follows: Authority:

    Secs. 2, 38, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2797); 22 U.S.C. 2794; 22 U.S.C. 2651a; Pub. L. 105-261, 112 Stat. 1920; Pub. L. 111-266; Section 1261, Pub. L. 112-239; E.O. 13637, 78 FR 16129.

    2. Section 120.32 is revised to read as follows:
    § 120.32 Major non-NATO ally.

    Major non-NATO ally, as defined in section 644(q) of the Foreign Assistance Act of 1961 (22 U.S.C. 2403(q)), means a country that is designated in accordance with section 517 of the Foreign Assistance Act of 1961 (22 U.S.C. 2321k) as a major non-NATO ally for purposes of the Foreign Assistance Act of 1961 and the Arms Export Control Act (22 U.S.C. 2151 et seq. and 22 U.S.C. 2751 et seq.). The following countries are designated as major non-NATO allies: Afghanistan (see § 126.1(g) of this subchapter), Argentina, Australia, Bahrain, Egypt, Israel, Japan, Jordan, Kuwait, Morocco, New Zealand, Pakistan, the Philippines, Republic of Korea, Thailand, and Tunisia. Taiwan shall be treated as though it were designated a major non-NATO ally.

    PART 126—GENERAL POLICIES AND PROVISIONS 3. The authority citation for part 126 continues to read as follows: Authority:

    Secs. 2, 38, 40, 42, and 71, Pub. L. 90-629, 90 Stat. 744 (22 U.S.C. 2752, 2778, 2780, 2791, and 2797); 22 U.S.C. 2651a; 22 U.S.C. 287c; E.O. 12918, 59 FR 28205; 3 CFR, 1994 Comp., p. 899; Sec. 1225, Pub. L. 108-375; Sec. 7089, Pub. L. 111-117; Pub. L. 111-266; Sections 7045 and 7046, Pub. L. 112-74; E.O. 13637, 78 FR 16129.

    4. Section 126.1 is amended by a. Revising paragraphs (a), (c), and (d); b. Adding paragraph (h); c. Revising paragraphs (i)(2) and (3): d. Adding paragraph (i)(5): e. Removing and reserving paragraph (l); f. Revising paragraph (m); and g. Removing and reserving paragraphs (n), (o), and (q).

    The revisions and additions read as follows:

    § 126.1 Prohibited exports, imports, and sales to or from certain countries.

    (a) General. It is the policy of the United States to deny licenses and other approvals for exports and imports of defense articles and defense services, destined for or originating in certain countries. The exemptions provided in this subchapter, except §§ 123.17, 126.4, and 126.6 of this subchapter, or when the recipient is a U.S. government department or agency, do not apply with respect to defense articles or defense services originating in or for export to any proscribed countries, areas, or persons. (See § 129.7 of this subchapter, which imposes restrictions on brokering activities similar to those in this section).

    (c) Identification in § 126.1 of the ITAR may derive from:

    (1) Exports and sales prohibited by United Nations Security Council sanctions measures. Whenever the United Nations Security Council mandates sanctions measures, all transactions that are prohibited by the aforementioned measures and involve U.S. persons (see § 120.15 of this subchapter) inside or outside of the United States, or any person in the United States, and defense articles or defense services described on the United States Munitions List (22 CFR part 121), irrespective of origin, are prohibited under the ITAR for the duration of the sanction, unless the Department of State publishes a notice in the Federal Register specifying different measures.

    (2) Terrorism. Exports or temporary imports of defense articles or defense services to countries that the Secretary of State has determined to be State Sponsors of Terrorism are prohibited under the ITAR. These countries have repeatedly provided support for acts of international terrorism, which is contrary to the foreign policy of the United States and thus subject to the policy specified in paragraph (a) of this section and the requirements of section 40 of the Arms Export Control Act (22 U.S.C. 2780) and the Omnibus Diplomatic Security and Anti-Terrorism Act of 1986 (22 U.S.C. 4801). Exports to countries that the Secretary of State has determined and certified to Congress, pursuant to section 40A of the Arms Export Control Act (22 U.S.C. 2781) and Executive Order 13637, are not cooperating fully with United States antiterrorism efforts are subject to the policy specified in paragraph (a) of this section. The Secretary of State makes such determinations and certifications annually.

    (3) Arms embargoes and sanctions. The policy specified in paragraph (a) of this section applies to countries subject to a United States arms embargo or sanctions regime, such as those described in the Foreign Assistance Act of 1961 (22 U.S.C. 2151 et seq.), the International Religious Freedom Act of 1998 (22 U.S.C. 6401 et seq.), or the Child Soldiers Prevention Act of 2008 (22 U.S.C. 2370c-2370c-2), or whenever an export of defense articles or defense services would not otherwise be in furtherance of world peace and the security and foreign policy of the United States.

    (d) Countries subject to certain prohibitions:

    (1) For defense articles and defense services, the following countries have a policy of denial:

    Country Belarus. Burma. China. Cuba. Iran. North Korea. Syria. Venezuela.

    (2) For defense articles and defense services, a policy of denial applies to the following countries except as specified in the associated paragraphs below:

    Country Country specific paragraph location Afghanistan See also paragraph (g) of this section. Central African Republic See also paragraph (u) of this section. Cyprus See also paragraph (r) of this section. Democratic Republic of Congo See also paragraph (i) of this section. Eritrea See also paragraph (h) of this section. Haiti See also paragraph (j) of this section. Iraq See also paragraph (f) of this section. Lebanon See also paragraph (t) of this section. Libya See also paragraph (k) of this section. Somalia See also paragraph (m) of this section. Sudan See also paragraph (v) of this section. Zimbabwe See also paragraph (s) of this section.

    (h) Eritrea. It is the policy of the United States to deny licenses or other approvals for exports or imports of defense articles and defense services destined for or originating in Eritrea, except that a license or other approval may be issued, on a case-by-case basis, for:

    (1) Non-lethal military equipment intended solely for humanitarian or protective use, as approved in advance by the relevant committee of the Security Council; or

    (2) Personal protective clothing, including flak jackets and military helmets, temporarily exported to Eritrea by United Nations personnel, representatives of the media, humanitarian and development workers, and associated personnel for their personal use only.

    (i) * * *

    (2) Defense articles and defense services intended solely for the support of or use by the United Nations Organization Stabilization Mission in the Democratic Republic of the Congo (MONUSCO) or the African Union-Regional Task Force;

    (3) Protective clothing, including flak jackets and military helmets, temporarily exported to the Democratic Republic of the Congo by United Nations personnel, representatives of the media, and humanitarian and development workers and associated personnel, for their personal use only;

    (5) Defense articles and defense services as approved by the relevant committee of the Security Council.

    (l) [Reserved]

    (m) Somalia. It is the policy of the United States to deny licenses or other approvals for exports or imports of defense articles and defense services destined for or originating in Somalia, except that a license or other approval may be issued, on a case-by-case basis, for:

    (1) Defense articles and defense services intended solely for the support of or use by the following:

    (i) The African Union Mission in Somalia (AMISOM);

    (ii) United Nations personnel, including the United Nations Assistance Mission in Somalia (UNSOM);

    (iii) AMISOM's strategic partners, operating solely under the African Union (AU) Strategic Concept of January 5, 2012 (or subsequent AU strategic concepts), and in cooperation and coordination with AMISOM; or

    (iv) The European Union Training Mission (EUTM) in Somalia.

    (2) Defense articles and defense services intended solely for the development of the Security Forces of the Federal Government of Somalia, to provide security for the Somali people, notified to the relevant committee of the Security Council at least five days in advance, except in relation to deliveries of the following articles, the supply of which needs to be approved in advance by the relevant committee of the Security Council:

    (i) Surface to air missiles, including Man-Portable Air-Defense Systems (MANPADS);

    (ii) Guns, howitzers, and cannons with a caliber greater than 12.7 mm, and ammunition and components specially designed for these (this does not include shoulder fired anti-tank rocket launchers such as RPGs or LAWs, rifle grenades, or grenade launchers);

    (iii) Mortars with a caliber greater than 82 mm;

    (iv) Anti-tank guided weapons, including Anti-tank Guided Missiles (ATGMs) and ammunition and components specially designed for these items;

    (v) Charges and devices intended for military use containing energetic material; mines, and related materiel; and

    (vi) Weapon sights with a night vision capability.

    (3) Defense articles and defense services supplied by United Nations member states or international, regional, or subregional organizations intended solely for the purposes of helping develop Somali security sector institutions, other than the Security Forces of the Federal Government of Somalia, and in the absence of a negative decision by the relevant committee of the Security Council within five working days of receiving a notification of any such assistance from the supplying State, international, regional or subregional organization;

    (4) Defense articles for the sole use by United Nations member states or international, regional, or subregional organizations undertaking measures to suppress acts of piracy and armed robbery at sea off the coast of Somalia, upon the request of the Federal Government of Somalia for which it has notified the Secretary-General, and provided that any measures undertaken shall be consistent with applicable international humanitarian and human rights laws;

    (5) Personal protective clothing, including flak jackets and military helmets, temporarily exported to Somalia by United Nations personnel, representatives of the media, humanitarian or development workers, or associated personnel for their personal use only; or

    (6) Supplies of non-lethal defense articles intended solely for humanitarian or protective use, notified to the relevant committee of the Security Council five days in advance for its information only, by the supplying State, international, regional, or subregional organization.

    (n)-(o) [Reserved]

    (q) [Reserved]

    5. Section 126.18 is amended by revising the fourth sentence of paragraph (c)(2) to read as follows:
    § 126.18 Exemptions regarding intra-company, intra-organization, and intra-government transfers to employees who are dual nationals or third-country nationals.

    (c) * * *

    (2) * * * Although nationality does not, in and of itself, prohibit access to defense articles, an employee who has substantive contacts with persons from countries listed in § 126.1(d)(1) shall be presumed to raise a risk of diversion, unless DDTC determines otherwise. * * *

    Rose E. Gottemoeller, Under Secretary, Arms Control and International Security, Department of State.
    [FR Doc. 2016-23284 Filed 9-28-16; 8:45 am] BILLING CODE 4710-25-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0668] Drawbridge Operation Regulation; James River, Hopewell, VA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of temporary deviation from drawbridge regulation; modification.

    SUMMARY:

    The Coast Guard has modified a temporary deviation from the operating schedule that governs the SR 156/Benjamin Harrison Memorial Bridge across the James River, mile 65.0, at Hopewell, VA. This modified deviation is necessary to extend the deviation timeframe to perform bridge maintenance and repairs. This modified deviation allows the bridge to remain in the closed-to-navigation position.

    DATES:

    This modified deviation is effective without actual notice from September 29, 2016 through 6 a.m. on October 28, 2016. For the purposes of enforcement, actual notice will be used from September 22, 2016, 8:45 a.m., until September 29, 2016.

    ADDRESSES:

    The docket for this deviation, [USCG-2016-0668] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this modified temporary deviation, call or email Mr. Michael R. Thorogood, Bridge Administration Branch Fifth District, Coast Guard, telephone 757-398-6557, email [email protected]

    SUPPLEMENTARY INFORMATION:

    On July 25, 2016, the Coast Guard published a temporary deviation entitled “Drawbridge Operation Regulation; James River, Hopewell, VA” in the Federal Register (81 FR 49898). Under that temporary deviation, the bridge would be maintained in the closed-to-navigation position from 8 p.m. through 6 a.m.; Monday through Thursday; July 25, 2016, through July 29, 2016; August 1, 2016, through August 5, 2016; September 5, 2016, through September 9, 2016; September 12, 2016, through September 16, 2016; and alternative dates from September 19, 2016, through September 23, 2016; and September 26, 2016, through September 30, 2016. The bridge would open for vessels on signal during scheduled closure periods, if at least 24 hours notice was given.

    The Virginia Department of Transportation, who owns and operates the SR 156/Benjamin Harrison Memorial Bridge, has requested a modified temporary deviation from the currently published deviation to extend the deviation timeframe to facilitate replacement of the service elevators for both lift towers, install new electrical wiring, bird screens, and structural steel of the bridge. The current operating schedule is open on signal as set out in 33 CFR 117.5. This modified temporary deviation serves to replace the previous temporary deviation in the Federal Register (81 FR 49898), immediately upon its publication into the Federal Register.

    Under this modified temporary deviation, the bridge will be maintained in the closed-to-navigation position from 8 p.m. through 6 a.m.; Monday through Friday; October 3, 2016, through October 7, 2016; October 10, 2016, through October 14, 2016; October 17, 2016, through October 21, 2016; and October 24, 2016, through October 28, 2016. The bridge will open for vessels on signal during scheduled closure periods, if at least 10 hours notice is given. The bridge is a vertical lift drawbridge and has a vertical clearance in the closed position of 50 feet above mean high water.

    The James River is used by a variety of vessels including deep-draft vessels, tug and barge traffic, and recreational vessels. The Coast Guard has carefully coordinated the restrictions with waterway users in publishing this temporary deviation.

    Vessels able to pass through the bridge in the closed-to-navigation position may do so at anytime. The bridge will be able to open for emergencies during scheduled closure periods, if at least 30 minutes notice is given. There is no immediate alternative route for vessels unable to pass through the bridge in the closed position. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transit to minimize any impact caused by the temporary deviation.

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

    Dated: September 22, 2016. Hal R. Pitts, Bridge Program Manager, Fifth Coast Guard District.
    [FR Doc. 2016-23508 Filed 9-28-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0868] Drawbridge Operation Regulation; Inner Harbor Navigation Canal, New Orleans, LA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulations.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Leon C. Simon Blvd. (Seabrook) (aka Senator Ted Hickey) bascule bridge across the Inner Harbor Navigation Canal, mile 4.6, at New Orleans, Orleans Parish, Louisiana. The deviation is necessary to accommodate The Endurance Foundation Festival, a New Orleans event. This deviation allows the bridge to remain closed-to-navigation for a eight hours on the day of the event.

    DATES:

    This deviation is effective from October 2, 2016 from 7 a.m. through 3 p.m.

    ADDRESSES:

    The docket for this deviation, [USCG-2016-0868] is available at http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Donna Gagliano, Bridge Administration Branch, Coast Guard, telephone (504) 671-2128, email [email protected].

    SUPPLEMENTARY INFORMATION:

    Premier Event Management, through the Louisiana Department of Transportation and Development (LDOTD), requested a temporary deviation from the operating schedule of the Leon C. Simon Blvd. (Seabrook) (aka Senator Ted Hickey) bascule bridge across the Inner Harbor Navigation Canal, mile 4.6, at New Orleans, Orleans Parish, Louisiana. The deviation was requested to accommodate The Endurance Foundation Festival, a New Orleans event. The vertical clearance of the Leon C. Simon Blvd. (Seabrook) (aka Senator Ted Hickey) bascule bridge is 46 feet above mean high water in the closed-to-navigation position and unlimited in the open-to-navigation position. The bridge is governed by 33 CFR 117.458(c).

    This deviation is effective on October 2, 2016. The bridge over the Inner Harbor Navigation Canal will be closed to marine traffic from 7 a.m. through 3 p.m. This deviation allows the bridge to remain closed-to-navigation for the duration of the event.

    Navigation on the waterway consists of small tugs with and without tows, commercial vessels, and recreational craft, including sailboats.

    Vessels able to pass through the bridge in the closed-to-navigation position may do so at anytime. The bridge will be able to open for emergencies, and there is no immediate alternate route. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge to minimize any impact caused by the temporary deviation.

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

    Dated: September 23, 2016. David M. Frank, Bridge Administrator, Eighth Coast Guard District.
    [FR Doc. 2016-23507 Filed 9-28-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0582] RIN 1625-AA09 Drawbridge Operation Regulation; Keweenaw Waterway, Houghton and Hancock, MI AGENCY:

    Coast Guard, DHS.

    ACTION:

    Final rule.

    SUMMARY:

    The Coast Guard is modifying the operating schedule for the US41 bridge, mile 16.0 over the Keweenaw Waterway, between the towns of Houghton and Hancock, Michigan. The use of the waterway has changed and this rule will modify the schedule that has been in place for approximately 31 years.

    DATES:

    This rule is effective October 31, 2016.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0582. In the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rulemaking.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Mr. Lee D. Soule, Bridge Management Specialist, Ninth Coast Guard District; telephone 216-902-6085, email [email protected].

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security E.O. Executive Order FR Federal Register MDOT Michigan Department of Transportation NEPA National Environmental Policy Act of 1969 NPRM Notice of proposed rulemaking RFA Regulatory Flexibility Act of 1980 SNPRM Supplemental notice of proposed rulemaking Pub. L. Public Law § Section U.S.C. United States Code II. Background Information and Regulatory History

    On July 25, 2016, we published a notice of proposed rulemaking (NPRM) entitled, Drawbridge Operation Regulation; Keweenaw Waterway, Houghton and Hancock, MI, in the Federal Register (81 FR 48369). We did not receive any comments on this proposed rule.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority 33 U.S.C. 499. MDOT requested to change the operating schedule of the US41 (Houghton-Hancock) bridge (33 CFR 117.635). The US41 bridge is the only crossing over the Keweenaw Waterway and connects the towns of Houghton and Hancock, Michigan. The current operating schedule has been in place for approximately 31 years and the use of the waterway has changed significantly, prompting the request to modify the current regulation to reflect current needs of navigation.

    Keweenaw Peninsula is the northernmost part of Michigan's Upper Peninsula projecting into Lake Superior. The Keweenaw Waterway runs northwesterly to southeasterly and separates the peninsula from the mainland making the US41 bridge the only bridge crossing for residents and visitors to the peninsula.

    The Keweenaw Waterway is used by recreational, commercial, inspected and uninspected passenger, and towing vessels. The US41 bridge is a vertical lift type drawbridge and provides a horizontal clearance of 250 feet, a vertical clearance of 103 feet in the fully open position, a vertical clearance of 7 feet in the closed position, and a vertical clearance of 35 feet in the intermediate position. The US41 bridge is a bi-level bridge originally designed with the upper level providing access for automobiles and the lower level providing access for rail, oversized vehicles, and snowmobiles.

    The rail service to the peninsula has been discontinued and oversized vehicles must provide advance notice to the state before traveling over the road to the peninsula. Most recreational and commercial vessel traffic, including passenger vessel services, end prior to November 15 each year and do not resume services until after May 7 due to the formation of ice in the waterway. Large commercial freighter vessels do not routinely pass through the Keweenaw Waterway.

    MDOT requested to remove bridgetenders between the hours of midnight and 4:00 a.m. each day and operate the bridge if at least 2-hours advance notice is provided between those hours during the navigation season. The table below shows total bridge opening data provided by MDOT, from April 16 to December 14, between the hours of midnight and 4 a.m., for the past 6 years.

    Year Openings 2010 4 2011 6 2012 6 2013 10 2014 7 2015 6

    The current regulation also requires the bridge to operate with a 24-hour advance notice for openings from January 1 through March 15 each year. The table below shows the total bridge opening data provided by MDOT, between December 15 and April 15, for the past 5 years.

    Year Openings 2011 0 2012 1 2013 5 2014 0 2015 0 IV. Discussion of Comments, Changes and the Final Rule

    Based on the bridge opening data provided by MDOT, only one year (2013) resulted in more than 7 openings, or an average of one opening per month, between the hours of midnight and 4:00 a.m. between mid-April and mid-December, during the past 6 years. This rule will allow the bridge to operate with at least a 2-hour advance notice for openings from April 15 through December 15 between the hours of midnight and 4 a.m. During these hours no bridgetender will be required at the bridge. The bridge will be placed in the intermediate position during this 4-hour time period providing a vertical clearance of 35 feet. Vessels requiring a full bridge opening will still be able to obtain an opening with a 2-hour advance notice. Vessels may also go around the peninsula to avoid passing through the bridge.

    Based on the bridge opening data provided by MDOT, only one year (2013) resulted in more than one bridge opening for the entire period between mid-December and mid-April during the past 6 years. The standard advance notice time applied to most drawbridges in the Great Lakes during the non-navigation season is 12-hours advance notice. This rule will allow the bridge to operate with at least 12-hour advance notice for openings from December 15 through April 15. During these dates no bridgetender will be required at the bridge. Vessels may also go around the peninsula to avoid passing under the bridge.

    The Coast Guard provided a comment period of 30 days and did not receive any comments.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the ability that vessels can still transit the bridge given advanced notice during times when vessel traffic is at its lowest.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard did not receive any comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule would not have a significant economic impact on a substantial number of small entities. This rule would not have a significant economic impact on any vessel owner or operator because the bridges will open with advance notice during low traffic times on the waterway or when ice conditions hinder normal navigation.

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

    Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT, above. Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

    C. Collection of Information

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

    D. Federalism and Indian Tribal Government

    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 would 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.

    E. Unfunded Mandates Reform Act

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

    F. Environment

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

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

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 117

    Bridges.

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

    PART 117—DRAWBRIDGE OPERATION REGULATIONS 1. The authority citation for part 117 continues to read as follows: Authority:

    33 U.S.C. 499; 33 CFR 1.05-1; and Department of Homeland Security Delegation No. 0170.1.

    2. Revise § 117.635 to read as follows:
    § 117.635 Keweenaw Waterway.

    The draw of the US41 bridge, mile 16.0 between Houghton and Hancock, shall open on signal; except that from April 15 through December 14, between midnight and 4 a.m., the draw shall be placed in the intermediate position and open on signal if at least 2 hours notice is given. From December 15 through April 14 the draw shall open on signal if at least 12 hours notice is given.

    Dated: September 15, 2016. J.E. Ryan, Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District.
    [FR Doc. 2016-23576 Filed 9-28-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2016-0825] RIN 1625-AA00 Safety Zone: Monte Foundation Fireworks Extravaganza, Capitola, CA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a temporary safety zone in the navigable waters at Capitola Wharf in Capitola, CA in support of Monte Foundation Fireworks Extravaganza on October 9, 2016. This safety zone is established to ensure the safety of mariners and spectators from the dangers associated with the pyrotechnics. Unauthorized persons or vessels are prohibited from entering into, transiting through, or remaining in the safety zone without permission of the Captain of the Port or their designated representative.

    DATES:

    This rule is effective from 8:30 p.m. to 9 p.m. on October 9, 2016.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0825 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Lieutenant Junior Grade Christina Ramirez, U.S. Coast Guard Sector San Francisco; telephone (415) 399-3585 or email at [email protected]

    SUPPLEMENTARY INFORMATION:

    Table of Abbreviations APA Administrative Procedure Act COTP Captain of the Port DHS Department of Homeland Security FR Federal Register A. Background Information and Regulatory History

    The Coast Guard is issuing this rule without prior notice 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 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(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. The Coast Guard received the information about the fireworks display on August 10, 2016, and the fireworks display would occur before the rulemaking process would be completed. Because of the dangers posed by the pyrotechnics used in this fireworks display, the safety zone is necessary to provide for the safety of event participants, spectators, spectator craft, and other vessels transiting the event area. For those reasons, it would be impracticable to publish an NPRM.

    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. For these same reasons, the Coast Guard finds good cause for implementing this rule less than thirty days before the effective date.

    B. Basis and Purpose

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, 160.5; Department of Homeland Security Delegation No. 0170.1, which collectively authorize the Coast Guard to establish safety zones.

    The Monte Foundation will sponsor the Monte Foundation Fireworks Extravaganza on October 9, 2016, at Capitola Wharf in Capitola, CA in approximate position 36°58′10″ N., 121°57′12″ W. (NAD 83) as depicted in National Oceanic and Atmospheric Administration (NOAA) Chart 18685. Upon the commencement of the fireworks display, a safety zone is necessary to protect spectators, vessels, and other property from the hazards associated with pyrotechnics.

    C. Discussion of the Interim Rule

    This temporary safety zone will encompass the navigable waters around the land based launch site at the Capitola Wharf in Capitola, CA. Upon the commencement of the 25-minute fireworks display, scheduled to begin at 8:30 p.m. on October 9, 2016, the safety zone will encompass the navigable waters around the fireworks launch site within a radius of 1,000 feet in approximate position 36°58′10″ N., 121°57′12″ W. (NAD 83) for the Monte Foundation Fireworks Extravaganza. At the conclusion of the fireworks display the safety zone shall terminate.

    The effect of the temporary safety zone will be to restrict navigation in the vicinity of the launch site until the conclusion of the scheduled display. Except for persons or vessels authorized by the Coast Guard Patrol Commander, no person or vessel may enter or remain in the restricted area. These regulations are needed to keep spectators and vessels away from the immediate vicinity of the launch site to ensure the safety of participants, spectators, and transiting vessels.

    D. Regulatory Analyses

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

    1. Regulatory Planning and Review

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

    We expect the economic impact of this rule will not rise to the level of necessitating a full Regulatory Evaluation. The safety zone is limited in duration, and is limited to a narrowly tailored geographic area. In addition, although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant because the local waterway users will be notified via public Broadcast Notice to Mariners to ensure the safety zone will result in minimum impact. The entities most likely to be affected are waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities.

    2. Impact on Small Entities

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

    This rule may affect owners and operators of waterfront facilities, commercial vessels, and pleasure craft engaged in recreational activities and sightseeing. This safety zone would not have a significant economic impact on a substantial number of small entities for the following reasons. This safety zone would be activated, and thus subject to enforcement, for a limited duration. When the safety zone is activated, vessel traffic could pass safely around the safety zone. The maritime public will be advised in advance of this safety zone via Broadcast Notice to Mariners.

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

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

    3. Collection of Information

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

    4. Federalism and Tribal Governments

    A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and determined that this rule does not have implications for federalism.

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

    5. Unfunded Mandates Reform Act

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

    6. Environment

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

    7. Protest Activities

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

    List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.

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

    PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority:

    33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

    2. Add § 165.T11-802 to read as follows:
    § 165.T11-802 Safety Zone; Monte Foundation Fireworks Extravaganza, Capitola, CA.

    (a) Location. This safety zone is established in the navigable waters at Capitola Wharf in Capitola, CA, as depicted in National Oceanic and Atmospheric Administration (NOAA) Chart 18685. The temporary safety zone will encompass the navigable waters around the fireworks launch site in approximate position 36°58′10″ N., 121°57′12″ W. (NAD83) within a radius of 1,000 feet.

    (b) Enforcement period. The zone described in paragraph (a) of this section will be enforced from 8:30 p.m. through 9 p.m. on October 9, 2016. The Captain of the Port San Francisco (COTP) will notify the maritime community of periods during which this zone will be enforced via Broadcast Notice to Mariners in accordance with § 165.7.

    (c) Definitions. As used in this section, “designated representative” means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer on a Coast Guard vessel or a Federal, State, or local officer designated by or assisting the COTP to assist in the patrol and enforcement of the safety zones.

    (d) Regulations. (1) Under the general regulations in subpart C of this part, entry into, transiting or anchoring within this safety zone is prohibited unless authorized by the COTP or a designated representative.

    (2) The safety zone is closed to all vessel traffic, except as may be permitted by the COTP or a designated representative.

    (3) Vessel operators desiring to enter or operate within the safety zone must contact the COTP or a designated representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the COTP or a designated representative. Persons and vessels may request permission to enter the safety zone on VHF-23A or through the 24-hour Command Center at telephone (415) 399-3547.

    Dated: August 26, 2016. Anthony J. Ceraolo, Captain, U.S. Coast Guard, Captain of the Port San Francisco.
    [FR Doc. 2016-23574 Filed 9-28-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2016-0895] RIN 1625-AA00 Safety Zone; Temporary Change to Date and Location for Recurring Pittsburgh Steelers Fireworks Display Within the Eighth Coast Guard District, Pittsburgh, PA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is temporarily changing the enforcement period and location for a recurring fireworks display within the Eighth Coast Guard District. This regulation applies to only one recurring fireworks display event that takes place in Pittsburgh, PA. This action is intended to protect personnel, vessels, and the marine environment from potential hazards created from a barge-based fireworks display.

    DATES:

    In § 165.801, the first table to § 165.801, entry 67 is effective from September 29, 2016 through February 28, 2017. In § 165.801, the first table to § 165.801, entry 59 is suspended from September 29, 2016 through February 28, 2017.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2016-0895 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email MST1 Jennifer Haggins, Marine Safety Unit Pittsburgh, U.S. Coast Guard, at telephone 412-221-0807, email [email protected]

    SUPPLEMENTARY INFORMATION:

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

    The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because fireworks displays on or over the navigable waterway poses safety concerns for waterway users. In this case, the Coast Guard published an NPRM entitled, “Sector Ohio Valley Annual and Recurring Safety Zones Update” in which it proposed to amend and update its safety zones listed in 33 CFR 165.801, the first table to § 165.801 relating to recurring fireworks shows and other events within the Coast Guard Sector Ohio Valley area of responsibility. The NPRM published on March 7, 2016 (81 FR 11706), and no comments were received. A final rule was published, entitled, “Sector Ohio Valley Annual and Recurring Safety Zones Update” on June 14, 2016 finalizing the recurring safety zones listed in 33 CFR 165.801, the first table to § 165.801 (81 FR 38595).

    On August 25, 2016, the Coast Guard discovered the safety zone listed in 33 CFR 165.801, the first table to § 165.801, entry 59 for the Pittsburgh Steelers Fireworks, Pittsburgh, PA has been changed to extend through February 2017, instead of January 2017, and the location has been changed from Ohio River, Mile 0.3-Allegheny River, Mile 0.2 to Allegheny River mile 0.0-0.25, Ohio River mile 0.0-0.3 and Monongahela River mile 0.0-0.1.

    After receiving and fully reviewing the event information, circumstances, and exact location, the Coast Guard determined that it is impracticable to publish an NPRM for the date and location changes because we must establish this safety zone on the date of publication of this rule.

    We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule is contrary to the public interest as immediate action is necessary to prevent possible loss of life and property during the hazards created by a barge-based fireworks display near and over the navigable waterway.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Pittsburgh (COTP) has determined that a safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created from a barge-based fireworks display. For the 2016-2017 Pittsburgh Steelers football season, the Coast Guard will temporarily suspend the regulation listed in 33 CFR 165.801, the first table to § 165.801, entry 59. Instead, by this rule, the Coast Guard will create a separate temporary rule in § 165.801, the first table to § 165.801, entry 67 in order to reflect the correct dates and locations for the 2016-2017 Pittsburgh Steelers' football season fireworks display events. This change is needed to accommodate the change in date and location of Pittsburgh Steelers Fireworks. No other portion of the § 165.801, the first table to § 165.801or other provisions in § 165.801 are affected by this regulation.

    IV. Discussion of the Rule

    The Coast Guard is temporarily suspending the regulation listed in 33 CFR 165.801, the first table to § 165.801, entry 59 and adding temporary regulation in Table to § 165.801, entry 67 in order to reflect the correct dates and locations for this year's events. This change is needed to accommodate the change in date and location of Pittsburgh Steelers Fireworks. No other portion of the first table to § 165.801 or other provisions in § 165.801 shall be affected by this regulation. Entry 59 establishes the safety zone on Sunday, Monday, or Thursday from September through January at Ohio River, Mile 0.3-Allegheny River, Mile 0.2 (Pennsylvania).

    This regulation temporarily changes the enforcement period from September through January to August through February, and the location from Ohio River, Mile 0.3-Allegheny River, Mile 0.2 (Pennsylvania) to Allegheny River mile 0.0-0.25, Ohio River mile 0.0-0.1, Monongahela River mile 0.0-0.1. The duration of the safety zone is intended to protect personnel, vessels, and the marine environment from potential hazards created from a barge-based firework display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

    In addition to notice in the Federal Register, the maritime community will be provided advance notification via the Local Notice to Mariners, and marine information broadcasts.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the size, location, and duration of the safety zone. This safety zone impacts a small portion of the waterway for a limited duration of less than two hours in the evening. Vessel traffic will be informed about the safety zone through local notices to mariners. Moreover, the Coast Guard will issue broadcast notices to mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to transit the zone.

    B. Impact on Small Entities

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

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting less then two hours that will prohibit entry to the Allegheny River mile 0.0-0.25, Ohio River mile 0.0-0.1, Monongahela River mile 0.0-0.1 during the barge-based firework event. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 165

    Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.

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

    PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority:

    33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.

    2. In § 165.801, in the first table: a. From September 29, 2016 through February 28, 2017, suspend entry “59”. b. From September 29, 2016 through February 28, 2017, add entry “67”.

    The addition reads as follows:

    § 165.801 Annual fireworks displays and other events in the Eighth Coast Guard District requiring safety zones. Date Sponsor/name Location Safety zone *         *         *         *         *         *         * 67. Sunday, Monday or Thursday from August through February Pittsburgh Steelers/Pittsburgh Steelers Fireworks Pittsburgh, PA Allegheny River mile 0.0-0.25, Ohio River mile 0.0-0.3 and Monongahela River mile 0.0-0.1.
    L. Mcclain, Jr., Commander, U.S. Coast Guard, Captain of the Port Pittsburgh.
    [FR Doc. 2016-23522 Filed 9-28-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 17 RIN 2900-AP57 Repayment by VA of Educational Loans for Certain Psychiatrists AGENCY:

    Department of Veterans Affairs.

    ACTION:

    Final rule.

    SUMMARY:

    The Department of Veterans Affairs (VA) is adding to its medical regulations a program for the repayment of educational loans for certain psychiatrists who agree to a period of obligated service with VA. This program is intended to increase the pool of qualified VA psychiatrists and increase veterans' access to mental health care.

    DATES:

    Effective Date: This rule is effective on September 29, 2016, except for § 17.644 which contains information collection requirements that have not been approved by OMB. VA will publish a document in the Federal Register announcing the effective date.

    FOR FURTHER INFORMATION CONTACT:

    Crystal Cruz, Deputy Director, Healthcare Talent Management (10A2A4), Veterans Health Administration, Department of Veterans Affairs, 810 Vermont Ave. NW., Washington, DC 20420; (405) 552-4346. (This is not a toll-free number.)

    SUPPLEMENTARY INFORMATION:

    Public Law 114-2, the Clay Hunt Suicide Prevention for American Veterans Act (Clay Hunt SAV Act), was enacted on February 12, 2015. Section 4 of this Act establishes a pilot program for the repayment of educational loans for certain psychiatrists seeking employment in VA, which will be referred to as the Program for the Repayment of Educational Loans (PREL) in this rulemaking. VA is in need of qualified psychiatrists to treat veterans who suffer from mental health disorders. This rulemaking is intended to increase the pool of qualified mental health specialists and, in turn, increase veterans' access to needed mental health care. The Clay Hunt SAV Act authorizes VA to repay educational loans to physicians who pursued a program of study leading to a certification in psychiatry. In order to assure that applicants are committed to VA employment, the statute provides that an individual who is participating in any other program of the Federal Government that repays educational loans is not eligible for the PREL. The Clay Hunt SAV Act also states that an individual who breaches his or her period of obligated service is liable to the United States, in lieu of such obligated service, for the amount that has been paid or is payable to or on behalf of the individual, reduced by the proportion of the number of days of the total obligation that the individual has already served. Under the Clay Hunt SAV Act, the PREL may continue for three years after the effective date of this rulemaking.

    The purpose of section 4 of the Clay Hunt SAV Act is substantively similar to the purpose of the statutory authority for the Educational Debt Reduction Program (EDRP), which is codified at 38 U.S.C. 7681, and section 4 of the Clay Hunt SAV Act appears as a Note to section 7681. Both programs are designed to assist VA in the recruitment and retention of qualified health care professionals and the repayment of educational loans to such individuals. VA did not promulgate regulations for the EDRP because there is no statutory requirement to establish regulations for an employee retention program. 5 U.S.C. 553(a)(2). However, subsection (h) of section 4 of the Clay Hunt SAV Act specifically requires VA to prescribe regulations to carry out the program. We have designed the regulations for the PREL in the Clay Hunt SAV Act to be as similar as possible to the VA policies for the EDRP except in specific identified circumstances unique to the PREL as stated in this rulemaking. Similarities between these two programs will facilitate their administration by VA.

    We are adding a new center heading immediately after § 17.636 to read, “Program for Repayment of Educational Loans for Certain VA Psychiatrists,” and to add new §§ 17.640 through 17.647.

    17.640 Purpose

    New § 17.640 is the purpose section for the PREL. This section states that §§ 17.640 through 17.647 establish the requirements for the PREL “obtained by physician residents pursuing a certification in psychiatry.”

    17.641 Definitions

    New § 17.641 is the definitions section applicable to §§ 17.640 through 17.647. The definitions are in alphabetical order in accordance with current writing convention.

    We are defining the term “acceptance of conditions” to mean “a signed document between VA and a participant of the PREL, in which the participant must agree to a period of obligated service, to maintain an acceptable level of performance determined by supervisory review in the position to which VA appoints the participant, terms and amount of payment, and to relocate, if required, to a location determined by VA at the participant's expense in exchange for educational loan repayments under the PREL.” The participant in the PREL is required to agree to all of the terms and conditions in the acceptance of conditions. The acceptance of conditions is consistent with the acceptance of conditions for the EDRP, with the added requirement of a mobility agreement. This additional requirement alerts the participant to the possibility of relocating to a geographical area that is not in the vicinity of the participant's residence and that such relocation is at the participant's expense. The requirement for relocation allows VA to better address employment needs for psychiatrists within its VA medical facilities. We will, therefore, provide a list of available VA medical facilities that have availability for psychiatrists in the acceptance of conditions, at the time the acceptance of conditions is signed. The applicant will choose a preferred location, in rank ordering, for the completion of his or her obligated period of service from the locations listed on the acceptance of conditions. However, VA will ultimately make the final determination as to where the applicant will perform his or her period of obligated service. We will also state that a “participant of the PREL must agree that he or she is willing to accept the location and position to which VA appoints the participant.”

    The Clay Hunt SAV Act requires VA to establish in regulation standards for qualified loans. We are defining “educational loan” to mean “a loan, government or commercial, made for educational purposes by institutions which are subject to examination and supervision in their capacity as lending institutions by an agency of the United States or of the state in which the lender has its principal place of business.” We are also stating “[l]oans must be for the actual costs paid for tuition, and other reasonable educational expenses such as living expenses, fees, books, supplies, educational equipment and materials, and laboratory expenses.” This definition will clarify that VA will only repay educational loans, not other types of loans that the participant incurred while the participant was completing his or her education. We are stating that loans must be obtained from a government entity, a private financial institution, a school, or any other authorized entity stated in this definition, as required by section 4(a)(2) of the Clay Hunt SAV Act. For this reason, we are also listing the types of loans that would not qualify for the repayment of educational loans; for example, loans made by family or friends, home equity loans, or other non-educational loans. The definition of educational loan will help ensure that debts repaid under this program are truly unpaid educational debt from legitimate educational institutions; represent debt related specifically to the specialty for which VA is recruiting the participant; and minimize opportunities for fraud or misuse of repayment funds. The definition will be consistent with the definition of educational loans for the EDRP program, and is based on our experience administering that program.

    We are defining the term “obligated service” to mean the period described in § 17.646. We are including this definition for convenience, but are setting forth the substantive requirements for obligated service in a separate section.

    We are stating that the PREL means the program for the repayment of educational loans for certain VA psychiatrists established in §§ 17.640 through 17.647. This shorter term will be used throughout §§ 17.640 through 17.647.

    17.642 Eligibility

    New § 17.642(a) will state the eligibility criteria for the PREL. The first criterion, § 17.642(a)(1), is that the applicant be a U.S. citizen. We are stating that the applicant must be a U.S. citizen or permanent resident because the purpose of the program is to increase the supply of qualified psychiatrists. The obligated service requirement could be harder to meet in the case of non-U.S. citizens or permanent residents whose ability to remain in this country is contingent on factors beyond VA's control.

    The Clay Hunt SAV Act describes eligible individuals as either licensed or eligible for licensure to practice psychiatric medicine in VA or enrolled in the final year of residency program leading to a specialty qualification in psychiatric medicine that is approved by the Accreditation Council for Graduate Medical Education. Although the Clay Hunt SAV Act provides for two different categories of eligible individuals, for this pilot program, we are only considering those that are enrolled in the final year of residency program leading to a specialty qualification in psychiatric medicine to allow VA to draw from a new pipeline of applicants by securing their commitment to VA service while still in residency. Based on past VA recruitment initiatives, VA has encountered a high yield of qualified applicants among those individuals who are in their final year of residency. Nearly two-thirds of all U.S. medical students train in VA medical facilities. We have encountered a greater success rate for VA employment among these students. Under the EDRP, however, VA cannot recruit from the pool of individuals who are in their final year of residency because the EDRP is solely for individuals who are permanent VA employees. VA will use this new, limited authority, in the pilot to focus solely on applicants still in a residency program. This temporary exclusion for the pilot program is intended for discovery purposes and will be assessed as part of the reporting requirements to determine impact and expansion feasibility.

    Individuals who are licensed or eligible for licensure would be considered under the EDRP. Therefore, the second eligibility criteria, in § 17.642(a)(2), is that the applicant be “enrolled in the final year of a post-graduate physician residency program leading to either a specialty qualification in psychiatric medicine or a subspecialty qualification of psychiatry; the program must be accredited by the Accreditation Council for Graduate Medical Education or the American Osteopathic Association.” Although the Clay Hunt SAV Act only includes programs accredited by the Accreditation Council for Graduate Medical Education, we are expanding the eligibility to include programs accredited by the American Osteopathic Association to increase the pool of qualified candidates. This expansion also makes the PREL consistent with program accreditation requirements for all other VA medical professionals.

    The applicant also has to meet other requirements at the time of employment. Specifically, the applicant must have completed all psychiatry residency training, received a completion certificate from the Program Director confirming successful completion of the residency program, and certify intention to apply for board certification in the specialty of psychiatry (through the American Board of Medical Specialties or the American Osteopathic Association) within two years of completion of the residency.

    VA's statute requires applicants be licensed or eligible for licensure to practice psychiatric medicine at the time of VA employment. Licensure criteria is listed in § 17.642(a)(3) and consists of having “at least one full, active, current, and unrestricted license that authorizes the licensee to practice in any State, Territories, and possessions of the United States, the District of Columbia, or the Commonwealth of Puerto Rico” and documentation of “graduation from a school of medicine accredited by the Liaison Committee on Medical Education or the American Osteopathic Association; or, if an international medical graduate, verify that requirements for certification by the Educational Commission for Foreign Medical Graduates have been met.” These criteria are consistent with the employment requirements for all VA medical professionals.

    New § 17.642(b) stipulates that if the applicant is simultaneously participating in any other program of the Federal Government that repays educational loans, the individual is not eligible to participate in the PREL. This prohibition on simultaneous eligibility is stated in the Clay Hunt SAV Act. See Public Law 114-2, sec. 4(b)(2).

    17.643 Application for the PREL

    New § 17.643 states what constitutes a complete application for the PREL. New § 17.643(a) states that the complete application for the PREL consists of a completed application form, letters of reference, and personal statement. The letters of reference and personal statement requested from the applicant are consistent with the information requested from individuals who are applying for a medical position in VA.

    The types of letters of reference that an applicant for the PREL would need to submit as part of the complete application package are specified in § 17.643(b). These letters of reference attest to the applicant's knowledge and expertise in the field of psychiatric medicine, and will assist VA in selecting the best qualified applicants.

    New § 17.643(c) states what constitutes a personal statement. The personal statement provides VA with the applicant's employment history, training, accomplishments, clinical areas of interest, as well as the reasons why the applicant would like to be employed in VA. The personal statement will help VA assess the applicant's strengths, which will assist in job placement within VA. We also request attestation that the applicant is not participating in any other loan payment program. The Clay Hunt SAV Act specifically excludes individuals from participating in the program if they are participating in any other program of the Federal Government that repays educational loans. The applicant must submit a summary of his or her educational debt, including the total amount of the debt, when the debt was acquired, and the name of the lending agency that provided the loan. New § 17.643(c) states that the loan must be specific to education that was required, used, and qualified the applicant for appointment as a psychiatrist. VA understands that there is a high cost associated with attending medical school and this program will ease the financial burden of the applicants. Lastly, the personal statement must include a full curriculum vitae of the applicant. The information that is requested from the applicants as part of their personal statement is the same information that VA requests from applicants of the EDRP program.

    17.644 Selection of Participants

    New § 17.644 establishes the selection criteria for applicants to the PREL. VA has an increasing need for qualified physicians who are certified in the field of psychiatry. As such, VA wants to make certain that the applicants who are selected for the PREL are highly qualified in their field as well as demonstrate a long term commitment to employment in VA. The selection criteria in § 17.644(a) is consistent with the selection criteria for physicians seeking employment in VA. VA will try to appoint participants of the PREL to the location desired by the participant and suited to the participant's personal goals; however, VA reserves the right to appoint a participant to a VA medical facility with the greatest need for additional staff psychiatrists. The selection criteria will also include meeting all of the eligibility criteria in § 17.642, strong references from peers and faculty supervisors, and good to excellent standing in the residency program, as determined from the Program Director letter. The participant must not have any identifiable past issues that will adversely affect the participant's credentialing process. If the participant is unable to be credentialed by VA, the participant will fail to comply with terms and conditions of participation in the PREL. The documentation provided by the participant under § 17.642 will alert VA of any past issues before the participant is selected and will enable VA to select a participant who would be better suited for VA's needs.

    The Clay Hunt SAV Act establishes a minimum number of individuals who VA would select for each year that VA carries out the PREL. New § 17.644(b) includes this requirement by stating that VA will select not less than ten individuals to participate in the program for each year that VA carries out the program.

    New § 17.644(c) states that “VA will notify applicants that they have been selected in writing.” Even though the participant may still be completing his or her residency requirement, we state that the applicant “becomes a participant in the program once the participant submits and VA signs the acceptance of conditions.” This will ensure the participant's commitment to the program.

    17.645 Award Procedures

    The Clay Hunt SAV Act establishes a maximum annual amount that VA may pay to a participant of the PREL. Public Law 114-2, sec. 4(e)(2). VA may pay no more than $30,000 in educational loan repayment for each year of obligated service. This payment restriction is stated in § 17.645(a)(1). New § 17.645(a)(2) further limits the amount paid to the participant by stating that “[a]n educational loan repayment may not exceed the actual amount of principal and interest on an educational loan or loans.” VA will add this restriction to alert the participant that once the loan has been repaid, VA will not issue further payments on this loan. VA reserves the right to issue payment in the manner that is most beneficial to VA. We are, therefore, stating in § 17.645(b) that VA will issue payments to the applicant or to the “lending institution, on behalf of the participant, for the principal and interest on approved loans.” We are also stating that the payments will be issued on a monthly or annual basis for each applicable service period depending on the terms of the acceptance of conditions. In order to verify that the participant is properly allocating the funds awarded to him or her, VA will require that the participant provide documentation that shows the amounts that were paid or were credited to reduce the principal and interest on the participant's educational loans during an obligated service period. The PREL is an incentive for recruitment of individuals whose education leads to a degree of doctor of medicine or doctor of osteopathy with a certification in psychiatry. As such, we state that payments issued to the participant for the PREL are exempt from Federal taxation.

    17.646 Obligated Service

    New § 17.646 provides the requirements for the obligated service for the PREL. New § 17.646(a) states that “[a] participant's obligated service will begin on the date on which the participant begins full-time, permanent employment with VA in the field of psychiatric medicine in a location determined by VA.” We further add that the “obligated service must be full-time, permanent employment and does not include any period of temporary or contractual employment.” VA needs to establish a commencement date for the participant's obligated service in the event that there is a breach in the service agreement. The Clay Hunt SAV Act states that a participant of the PREL must serve for a period of two or more calendar years. This requirement is stated in § 17.646(b). In order to make the best use of available resources, VA reserves the right to make the final decision on where the participant is assigned to complete his or her obligated service. VA will make every effort to take into consideration the participant's preference; however, if there is no immediate need for a clinical employee in psychiatric medicine in the participant's preferred location, VA will assign the participant to a VA medical facility that is in need of the participant's field of expertise. This requirement is stated in § 17.646(c).

    17.647 Failure To Comply With Terms and Conditions of Participation

    If a participant fails to commence or complete his or her period of obligated service, such participant is found in breach of the obligated service agreement. Section 4(f) of the Clay Hunt SAV Act provides a liability clause in case of a breach in the participant's obligated service. We will state the participant's liability in § 17.647(a). The amount that a participant would be liable to the United States would be “the full amount of benefit they expected to receive in the agreement, pro-rated for completed service days.” Each participant will have a multi-year service agreement. VA interprets this provision to mean that in the event of a breach, at whatever point that breach occurs during the participants' commitment to the program, a participant will be liable to VA for the entire amount that was payable to the participant during the period to which they have committed to the program, minus the prorated amount for the service the participant rendered. VA believes the PREL's authority is intended to allow VA to collect the full amount of loan payments payable to the participant over the entire term of the individual's service agreement, in a proportion that adequately represents the harm to the agency of being without one of these practitioners for the period of the breach. Participants who fail to begin or complete their obligation will become liable to the United States for the full amount of benefit they expected to receive in the agreement, pro-rated for completed service days for any service year initiated but not completed, and $30,000 or the yearly amount agreed to in the acceptance of conditions for any full service year agreed to but not initiated.

    The intent of the Clay Hunt SAV Act is to increase the pool of qualified psychiatrists in VA and the participant's liability will deter a participant from leaving VA employment or, alternatively, will ensure that VA has authority to recover damages. New § 17.647(b) establishes the repayment period for the amount of damages due to the United States. We state that the participant will be required to repay the amount of damages owed no later than one year after the date of the breach of the acceptance of conditions.

    Administrative Procedure Act

    This final rule prescribes regulations that govern VA employment and are, therefore, exempt from the notice-and-comment requirements of the Administrative Procedure Act under 5 U.S.C. 553(a)(2).

    In addition, we note that the number of veterans receiving VA mental health care has greatly increased in the past years. VA provided mental health treatment to more than 1.6 million Veterans in FY 2015. Between FY 2005 and 2015, the number of Veterans who received mental health care from VA grew by 80 percent from ~.9M to ~1.6M. In 2005, 19% of VA users received mental health services, in 2015, the figure was 28%. VA Mental Health Care Fact Sheet July, 8, 2016. This increase is due to improved screening, awareness, and understanding of post-traumatic stress disorder, as well as other mental health disorders. Without qualified psychiatrists to assist veterans in overcoming mental health disorders, this number could increase in the coming years. Veterans have voiced their concerns regarding the lack of qualified mental health specialists within VA, a deficiency that has increased the wait time for VA mental health care. VA Mental Health Care Fact Sheet July, 8, 2016. According to the VA Office of Mental Health Services, VA currently tracks the average number of days from the Veteran's preferred appointment date to the completed appointment date for both new and established patients in mental health treatment. On average, new patients currently have a 4.6-day wait for an appointment and established patients have a 3-day wait. Overall, appointment wait times increased gradually from approximately 2 days at the beginning of FY 2014 to about 3 days in FY 2015 and into FY 2016.

    This rulemaking will increase the pool of qualified VA psychiatrists, which will greatly alleviate the shortage of mental health physicians. The Secretary finds that it is impracticable and contrary to the public interest to delay this rule for the purpose of soliciting advance public comment or to have a delayed effective date.

    The Secretary finds good cause to issue this rule as a final rule.

    Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this final rulemaking, represents VA's implementation of its legal authority on this subject. Other than future amendments to this regulation or governing statutes, no contrary guidance or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rulemaking if possible or, if not possible, such guidance is superseded by this rulemaking.

    Paperwork Reduction Act

    This final rule includes a provision constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) that requires approval by the Office of Management and Budget (OMB). Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking to OMB for review. OMB assigns control numbers to collections of information it approves. VA 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. Proposed § 17.643 contains a collection of information under the Paperwork Reduction Act of 1995. Except for emergency approvals under 44 U.S.C. 3507(j), VA 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. We have requested that OMB approve the collection of information on an emergency basis, for up to a maximum of 180 days. If OMB does not approve the collection of information as requested, we will immediately remove § 17.643 or take such other action as is directed by OMB.

    We are also seeking an approval of the information collection on a nonemergency basis, to authorize the collection of information after the 180 day maximum emergency approval period, by requesting comments on the collection of information provisions contained in § 17.643. Comments must be submitted by November 28, 2016. Comments on the collection of information contained in this final rule should be submitted to the Office of Management and Budget, Attention: Desk Officer for the Department of Veterans Affairs, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies sent by mail or hand delivery to the Director, Regulations Management (02REG), Department of Veterans Affairs, 810 Vermont Avenue NW., Room 1068, Washington, DC 20420; fax to (202) 273-9026; or through www.Regulations.gov. Comments should indicate that they are submitted in response to “RIN 2900-AP57 Repayment by VA of Educational Loans for Certain Psychiatrists.”

    OMB is required to make a decision concerning the collections of information contained in this final rule between 30 and 60 days after publication of this document in the Federal Register. Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication.

    VA considers comments by the public on collections of information in—

    • Evaluating whether the collections of information are necessary for the proper performance of the functions of VA, including whether the information will have practical utility;

    • Evaluating the accuracy of VA's estimate of the burden of the collections of information, including the validity of the methodology and assumptions used;

    • Enhancing the quality, usefulness, and clarity of the information to be collected; and

    • Minimizing the burden of the collections of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

    The collections of information contained in § 17.643 are described immediately following this paragraph, under their respective titles.

    Title: Repayment by VA of Educational Loans for Certain Psychiatrists.

    Summary of collection of information: The information required determines the eligibility or suitability of an applicant desiring to participate in the PREL under the provisions of 38 U.S.C. 7681 Note. The purpose of the PREL would be to repay educational loans to individuals who pursued a program of study leading to a degree in psychiatric medicine and who are seeking employment in VA. VA considers this program as a hiring incentive for physicians with a degree in psychiatric medicine, which will help alleviate the shortage of mental health specialists in VA.

    Description of the need for information and proposed use of information: The information is needed to apply for the PREL. VA will use this information to select qualified candidates to participate in this program.

    Description of likely respondents: Potential participants of the PREL.

    Estimated number of respondents per month/year: 100 per year.

    Estimated frequency of responses per month/year: 1 per year.

    Estimated average burden per response: 8 hours per year.

    Estimated total annual reporting and recordkeeping burden: 800 hours per year.

    Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule directly affects only individuals and will not directly affect small entities. Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.

    Executive Order 12866 and 13563

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

    VA has examined the economic, interagency, budgetary, legal, and policy implications of this regulatory action, and it has been determined to be a significant regulatory action under Executive Order 12866 because it is likely to result in a rule that may raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's Web site at http://www.va.gov/orpm/, by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.”

    Unfunded Mandates

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

    Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance numbers and titles for the programs affected by this document are 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.014, Veterans State Domiciliary Care; 64.015, Veterans State Nursing Home Care; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care; and 64.024, VA Homeless Providers Grant and Per Diem Program.

    Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert D. Snyder, Chief of Staff, Department of Veterans Affairs, approved this document on May 23, 2016, for publication.

    List of Subjects in 38 CFR Part 17

    Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Government contracts, Grant programs-health, Grant programs-veterans, Health care, Health facilities, Health professions, Health records, Homeless, Medical and Dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Reporting and recordkeeping requirements, Travel and transportation expenses, Veterans.

    Dated: May 23, 2016. Jeffrey Martin, Office Program Manager, Office of Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs. Editorial note:

    This document was received at the Office of the Federal Register on September 23, 2016.

    For the reasons set out in the preamble, VA is amending 38 CFR part 17 as follows:

    PART 17—MEDICAL 1. The authority citation for part 17 is revised to read as follows: Authority:

    38 U.S.C. 501, and as noted in specific sections.

    Sections 17.640 and 17.647 also issued under Pub. L. 114-2, sec. 4.

    Sections 17.641 through 17.646 also issued under 38 U.S.C. 501(a) and Pub. L. 114-2, sec. 4.

    2. Add an undesignated center heading immediately following § 17.636 and new §§ 17.640 through 17.647 to read as follows: Sec. Program for Repayment of Educational Loans for Certain VA Psychiatrists 17.640 Purpose. 17.641 Definitions. 17.642 Eligibility. 17.643 Application for the program for the repayment of educational loans. 17.644 Selection of participants. 17.645 Award procedures. 17.646 Obligated service. 17.647 Failure to comply with terms and conditions of participation. Program for Repayment of Educational Loans for Certain VA Psychiatrists
    § 17.640 Purpose.

    The purpose of §§ 17.640 through 17.647 is to establish the requirements for the program for the repayment of educational loans (PREL) obtained by physician residents pursuing a certification in psychiatry.

    § 17.641 Definitions.

    The following definitions apply to §§ 17.640 through 17.647.

    Acceptance of conditions means a signed document between VA and a participant of the PREL, in which the participant must agree to a period of obligated service, to maintain an acceptable level of performance determined by supervisory review in the position to which VA appoints the participant, to terms and amount of payment, and to relocate, if required, to a location determined by VA at the participant's expense in exchange for educational loan repayments under the PREL. VA will provide a list of available locations for the period of obligated service in the acceptance of conditions. The applicant will choose the preferred location, in ranking order, for the completion of his or her obligated service from the locations on this list. However, VA will ultimately make the final determination as to where the applicant will perform his or her period of obligated service. A participant of the PREL must agree that he or she is willing to accept the location and position to which VA appoints the participant.

    Educational loan means a loan, government or commercial, made for educational purposes by institutions that are subject to examination and supervision in their capacity as lending institutions by an agency of the United States or of the state in which the lender has its principal place of business. Loans must be for the actual costs paid for tuition, and other reasonable educational expenses such as living expenses, fees, books, supplies, educational equipment and materials, and laboratory expenses. Loans must be obtained from a government entity, a private financial institution, a school, or any other authorized entity stated in this definition. The following loans do not qualify for the PREL:

    (1) Loans obtained from family members, relatives, or friends;

    (2) Loans made prior to, or after, the individual's qualifying education;

    (3) Any portion of a consolidated loan that is not specifically identified with the education and purposes for which the PREL may be authorized, such as home or auto loans merged with educational loans;

    (4) Loans for which an individual incurred a service obligation for repayment or agreed to service for future cancellation;

    (5) Credit card debt;

    (6) Parent Plus Loans;

    (7) Loans that have been paid in full;

    (8) Loans that are in default, delinquent, not in a current payment status, or have been assumed by a collection agency;

    (9) Loans not obtained from a bank, credit union, savings and loan association, not-for-profit organization, insurance company, school, and other financial or credit institution which is subject to examination and supervision in its capacity as a lending institution by an agency of the United States or of the state in which the lender has its principal place of business;

    (10) Loans for which supporting documentation is not available;

    (11) Loans that have been consolidated with loans of other individuals, such as spouses, children, friends, or other family member; or

    (12) Home equity loans or other non-educational loans.

    PREL means the program for the repayment of educational loans for certain VA psychiatrists established in §§ 17.640 through 17.647.

    § 17.642 Eligibility.

    (a) General. To be eligible for the PREL, an applicant must meet all of the following requirements:

    (1) Be a U.S. citizen or permanent resident.

    (2) Be enrolled in the final year of a post-graduate physician residency program leading to either a specialty qualification in psychiatric medicine or a subspecialty qualification of psychiatry (the program must be accredited by the Accreditation Council for Graduate Medical Education or the American Osteopathic Association, and, by the time of VA employment, must:

    (i) Have completed all psychiatry residency training;

    (ii) Have received a completion certificate from the Program Director confirming successful completion of the residency program; and

    (iii) Certify intention to apply for board certification in the specialty of psychiatry (through the American Board of Medical Specialties or the American Osteopathic Association) within two years after completion of residency.

    (3) Be licensed or eligible for licensure to practice medicine by meeting the following requirements by the time of VA employment:

    (i) Have at least one full, active, current, and unrestricted license that authorizes the licensee to practice in any State, Territory, or possession of the United States, the District of Columbia, or the Commonwealth of Puerto Rico;

    (ii) Document graduation from a school of medicine accredited by the Liaison Committee on Medical Education or the American Osteopathic Association; or, if an international medical graduate, verify that requirements for certification by the Educational Commission for Foreign Medical Graduates have been met.

    (b) Simultaneous participation in another repayment program. Any applicant who, at the time of application, is participating in any other program of the Federal Government that repays the educational loans of the applicant is not eligible to participate in the PREL.

    § 17.643 Application for the PREL.

    (a) General. A complete application for the PREL consists of a completed application form, letters of reference, and personal statement.

    (b) References. The applicant must provide the following letters of reference and sign a release of information form for VA to contact such references. The letters of reference should include the following:

    (1) One letter of reference from the Program Director of the core psychiatry program in which the applicant trained or is training, or the Program Director of any psychiatry subspecialty program in which the applicant is training, which indicates that the applicant is in good to excellent standing;

    (2) One or more letters of reference from faculty members under which the applicant trained;

    (3) One letter of reference from a peer colleague who is familiar with the psychiatry practice and character of the applicant.

    (c) Personal statement. The personal statement must include the following documentation:

    (1) A cover letter that provides the following information:

    (i) Why the applicant is interested in VA employment;

    (ii) The applicant's interest in working at a particular VA medical facility;

    (iii) Likely career goals, including career goals in VA; and

    (iv) A brief summary of past employment or training and accomplishments, including any particular clinical areas of interest (e.g., substance abuse).

    (2) The following information must be provided on a VA form or online collection system and is subject to VA verification:

    (i) Attestation that the applicant is not participating in any other loan repayment program.

    (ii) A summary of the applicant's educational debt, which includes the total debt amount and when the debt was acquired. The health professional debt covered the loan must be specific to education that was required, used, and qualified the applicant for appointment as a psychiatrist.

    (ii) The name of the lending agency that provided the educational loan.

    (3) A full curriculum vitae.

    § 17.644 Selection of participants.

    (a) Selection criteria. In evaluating and selecting participants, VA will consider the following factors:

    (1) The applicant meets all of the eligibility criteria in § 17.642 and has submitted a complete application under § 17.643;

    (2) The strength of the applicant's letters of reference;

    (4) The applicant is in good to excellent standing in the residency program, as determined from the Program Director letter of reference;

    (5) The applicant demonstrates a strong commitment to VA's mission and core values;

    (6) The applicant has personal career goals that match VA needs (i.e., to work with patients suffering from traumatic brain injury, substance abuse, or post-traumatic stress disorder);

    (7) The applicant's expresses a desire to work at a location that matches with VA needs; and

    (8) The applicant does not have any identifiable circumstances relating to education, training, licensure, certification and review of health status, previous experience, clinical privileges, professional references, malpractice history and adverse actions, or criminal violations that would adversely affect the applicant's credentialing process.

    (b) Selection. VA will select not less than 10 individuals who meet the requirements of this section to participate in the program for the repayment of educational loans for each year in which VA carries out the program.

    (c) Notification of selection. VA will notify applicants that they have been selected in writing. An individual becomes a participant in the PREL once the participant submits and VA signs the acceptance of conditions.

    § 17.645 Award procedures.

    (a) Repayment amount. (1) VA may pay not more than $30,000 in educational loan repayment for each year of obligated service.

    (2) An educational loan repayment may not exceed the actual amount of principal and interest on an educational loan or loans.

    (b) Payment. VA will pay the participant, or the lending institution on behalf of the participant, directly for the principal and interest on the participant's educational loans. Payments will be made monthly or annually for each applicable service period, depending on the terms of the acceptance of conditions. Participants must provide VA documentation that shows the amounts that were credited or posted by the lending institution to a participant's educational loan during an obligated service period. VA will issue payments after the participant commences the period of obligated service. Payments are exempt from Federal taxation.

    § 17.646 Obligated service.

    (a) General provision. A participant's obligated service will begin on the date on which the participant begins full-time, permanent employment with VA in the field of psychiatric medicine in a location determined by VA. Obligated service must be full-time, permanent employment and does not include any period of temporary or contractual employment.

    (b) Duration of service. The participant will agree in the acceptance of conditions to serve for an obligated service period of 2 or more calendar years.

    (c) Location and position of obligated service. VA reserves the right to make final decisions on the location and position of the obligated service.

    § 17.647 Failure to comply with terms and conditions of participation.

    (a) Participant fails to satisfy obligated service. A participant of the PREL who fails to satisfy the period of obligated service will be liable to the United States, in lieu of such obligated service, for the full amount of benefit they expected to receive in the agreement, pro-rated for completed service days.

    (b) Repayment period. The participant will pay the amount of damages that the United States is entitled to recover under this section in full to the United States no later than 1 year after the date of the breach of the agreement.

    [FR Doc. 2016-23360 Filed 9-28-16; 8:45 am] BILLING CODE 8320-01-P
    POSTAL SERVICE 39 CFR Part 20 International Mail Manual; Incorporation by Reference AGENCY:

    Postal ServiceTM.

    ACTION:

    Final rule.

    SUMMARY:

    The Postal Service announces the issuance of the Mailing Standards of the United States Postal Service, International Mail Manual (IMM®) dated July 11, 2016, and its incorporation by reference in the Code of Federal Regulations.

    DATES:

    This final rule is effective on September 29, 2016. The incorporation by reference of the IMM is approved by the Director of the Federal Register as of September 29, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Lizbeth Dobbins, (202) 268-3789.

    SUPPLEMENTARY INFORMATION:

    The International Mail Manual was issued on July 11, 2016, and was updated with Postal Bulletin revisions through June 23, 2016. It replaced all previous editions. The IMM continues to enable the Postal Service to fulfill its long-standing mission of providing affordable, universal mail service. It continues to: (1) Increase the user's ability to find information; (2) increase the user's confidence that they have found the information they need; and (3) reduce the need to consult multiple sources to locate necessary information. The provisions throughout this issue support the standards and mail preparation changes implemented since the version of January 25, 2015. The International Mail Manual is available to the public on the Postal Explorer® Internet site at http://pe.usps.com.

    List of Subjects in 39 CFR Part 20

    Foreign relations; Incorporation by reference.

    In view of the considerations discussed above, the Postal Service hereby amends 39 CFR part 20 as follows:

    PART 20—INTERNATIONAL POSTAL SERVICE 1. The authority citation for part 20 continues to read as follows: Authority:

    5 U.S.C. 552(a); 13 U.S.C. 301-307; 18 U.S.C. 1692-1737; 39 U.S.C. 101, 401, 403, 404, 407, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3622, 3626, 3632, 3633, and 5001.

    2. Amend § 20.1 by revising paragraph (a), revising the introductory text of the table in paragraph (b), and adding a new entry at the end of the table, to read as follows:
    § 20.1 International Mail Manual; incorporation by reference.

    (a) Section 552(a) of title 5, U.S.C., relating to the public information requirements of the Administrative Procedure Act, provides in pertinent part that matter reasonably available to the class of persons affected thereby is deemed published in the Federal Register when incorporated by reference therein with the approval of the Director of the Federal Register. In conformity with that provision and 39 U.S.C. 410(b)(1), and as provided in this part, the Postal Service hereby incorporates by reference its International Mail Manual (IMM), issued July 11, 2016. The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

    (b) The current Issue of the IMM is incorporated by reference in paragraph (a) of this section. Successive Issues of the IMM are listed in Table 1:

    Table 1 to Paragraph (b) International Mail Manual Date of issuance *    *    *    * IMM July 11, 2016.
    3. Revise § 20.2 to read as follows:
    § 20.2 Effective date of the International Mail Manual.

    The provisions of the International Mail Manual issued July 11, 2016, are applicable with respect to the international mail services of the Postal Service.

    Stanley F. Mires, Attorney, Federal Compliance.
    [FR Doc. 2016-23334 Filed 9-28-16; 8:45 am] BILLING CODE 7710-12-P
    POSTAL SERVICE 39 CFR Part 111 Domestic Mail Manual; Incorporation by Reference AGENCY:

    Postal ServiceTM.

    ACTION:

    Final rule.

    SUMMARY:

    The Postal Service announces the issuance of the Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM®) dated July 11, 2016, and its incorporation by reference in the Code of Federal Regulations.

    DATES:

    This final rule is effective on September 29, 2016. The incorporation by reference of the DMM dated July 11, 2016, is approved by the Director of the Federal Register as of September 29, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Lizbeth Dobbins (202) 268-3789.

    SUPPLEMENTARY INFORMATION:

    The most recent issue of the Domestic Mail Manual (DMM) is dated July 11, 2016. This issue of the DMM contains all Postal Service domestic mailing standards, and continues to: (1) Increase the user's ability to find information; (2) increase confidence that users have found all the information they need; and (3) reduce the need to consult multiple chapters of the Manual to locate necessary information. The issue dated July 11, 2016, sets forth specific changes, including new standards throughout the DMM to support the standards and mail preparation changes implemented since the version issued on January 25, 2015.

    Changes to mailing standards will continue to be published through Federal Register notices and the Postal Bulletin, and will appear in the next online version available via the Postal Explorer® Web site at: http://pe.usps.com.

    List of Subjects in 39 CFR Part 111

    Administrative practice and procedure, Incorporation by reference.

    In view of the considerations discussed above, the Postal Service hereby amends 39 CFR part 111 as follows:

    PART 111—GENERAL INFORMATION ON POSTAL SERVICE 1. The authority citation for 39 CFR part 111 continues to read as follows: Authority:

    5 U.S.C. 552(a); 13 U.S.C. 301-307; 18 U.S.C. 1692-1737; 39 U.S.C. 101, 401, 403, 404, 414, 416, 3001-3011, 3201-3219, 3403-3406, 3621, 3622, 3626, 3632, 3633, and 5001.

    2. In § 111.3 amend paragraph (f) by revising the last entry in the table and adding a new entry at the end of the table to read as follows:
    § 111.3 Amendment to the Mailing Standards of the United States Postal Service, Domestic Mail Manual.

    (f) * * *

    Transmittal letter for issue Dated Federal Register publication *         *         *         *         *         *         * DMM 300 January 25, 2015 80 FR 13492 [INSERT FR CITATION FOR THIS RULE]. DMM 300 July 11, 2016.
    § 111.4 [Amended]
    3. Amend § 111.4 by removing “July 31, 2012” and adding “September 29, 2016”. Stanley F. Mires, Attorney, Federal Compliance.
    [FR Doc. 2016-23335 Filed 9-28-16; 8:45 am] BILLING CODE 7710-12-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 50 [EPA-HQ-OAR-2016-0408; FRL-9953-20-OAR] RIN 2060-AS89 Technical Correction to the National Ambient Air Quality Standards for Particulate Matter AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Withdrawal of direct final rule.

    SUMMARY:

    Because the Environmental Protection Agency (EPA) received adverse comment, we are withdrawing the direct final rule titled, “Technical Correction to the National Ambient Air Quality Standards for Particulate Matter,” published on August 11, 2016.

    DATES:

    Effective September 29, 2016, the EPA withdraws the direct final rule published at 81 FR 53006 on August 11, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Brett Gantt, Air Quality Assessment Division, Office of Air Quality Planning and Standards (Mail Code: C304-04), Environmental Protection Agency, 109 T.W. Alexander Drive, Research Triangle Park, NC 27711, telephone number: 919-541-5274; fax number: 919-541-3613; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Because the EPA received adverse comment, we are withdrawing the direct final rule titled, “Technical Correction to the National Ambient Air Quality Standards for Particulate Matter,” published on August 11, 2016 (81 FR 53006). We stated in that direct final rule that if we received adverse comment by September 12, 2016, the direct final rule would not take effect and we would publish a timely withdrawal in the Federal Register. We subsequently received adverse comment on that direct final rule. We will address those comments in a final action, which will be based on the parallel proposed rule also published on August 11, 2016 (81 FR 53097). As stated in the direct final rule and the parallel proposed rule, we will not institute a second comment period on this action.

    Dated: September 20, 2016. Janet G. McCabe, Acting Assistant Administrator, Office of Air and Radiation.
    [FR Doc. 2016-23304 Filed 9-28-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R10-OAR-2016-0493: FRL-9953-04-Region 10] Approval and Promulgation of Implementation Plans; Washington: General Regulations for Air Pollution Sources AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    In reviewing past State Implementation Plan (SIP) actions, the Washington Department of Ecology (Ecology) and the Environmental Protection Agency (EPA) discovered minor typographical errors related to the EPA's previous approvals of Chapter 173-400 Washington Administrative Code, General Regulations for Air Pollution Sources. The EPA is taking direct final action to correct these errors. This direct final action makes no substantive changes to the SIP and imposes no new requirements.

    DATES:

    This rule is effective on November 28, 2016, without further notice, unless the EPA receives adverse comment by October 31, 2016. If the EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R10-OAR-2016-0493 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Jeff Hunt, Air Planning Unit, Office of Air and Waste (OAW-150), Environmental Protection Agency, Region 10, 1200 Sixth Ave, Suite 900, Seattle, WA 98101; telephone number: (206) 553-0256; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, it is intended to refer to the EPA.

    I. Introduction

    In final actions published October 3, 2014 (79 FR 59653) and April 29, 2015 (80 FR 23721), the EPA approved Washington Administrative Code (WAC) 173-400-110 New Source Review (NSR) for Sources and Portable Sources and WAC 173-400-112 Requirements for New Sources in Nonattainment Areas—Review for Compliance with Regulations with certain exceptions. One of the listed exceptions was “the part of 400-110(4)(e)(f)(i)” related to toxic air pollutants. The EPA notes that “400-110(4)(e)(f)(i)” does not exist under Chapter 173-400 WAC. The correct citation is “400-110(4)(f)(i).” Similarly, both final approvals contained regulatory text under 40 CFR part 52.2470(c) which listed an exception for WAC 173-400-112(8). WAC 173-400-112(8) does not exist in the version of Chapter 173-400 WAC adopted by Ecology on November 28, 2012, which the EPA reviewed and approved. This exception, related to toxic air pollutants, was a holdover from a previous approval action (60 FR 28726, June 2, 1995). This exception was inadvertently copied as part of 40 CFR 52.2470(c) Table 2—Additional Regulations Approved for Washington Department of Ecology (Ecology) Direct Jurisdiction. Both typographical errors were also inadvertently copied in the regulatory text of a November 17, 2015 final approval for the Benton Clean Air Agency, under 40 CFR 52.2470(c) Table 4—Additional Regulations Approved for the Benton Clean Air Agency (BCAA) Jurisdiction, which generally relies on the regulations contained in Chapter 173-400 WAC (80 FR 71695).

    II. Final Action

    The EPA has determined that the typographical errors referenced above should be corrected at this time. The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial action and anticipates no adverse comment. However, in the “Proposed Rules” section of this Federal Register, the EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on November 28, 2016 without further notice unless the EPA receives adverse comment by October 31, 2016. If the EPA receives adverse comment, the EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. The EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if the EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, the EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

    III. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is correcting minor typographical errors related to the incorporation by reference contained in 40 CFR 52.2470(c) Table 2—Additional Regulations Approved for Washington Department of Ecology (Ecology) Direct Jurisdiction and Table 4—Additional Regulations Approved for the Benton Clean Air Agency (BCAA) Jurisdiction. These materials have been approved by the EPA for inclusion in the SIP, 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 the EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1 The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 10 Office (please contact the person identified in the “For Further Information Contact” section of this preamble for more information).

    1 62 FR 27968 (May 22, 1997).

    IV. Statutory and Executive Orders Review

    Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

    • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

    • does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

    • is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

    • does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

    • does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

    • is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

    • is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

    • is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

    • does not provide the 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 in Washington except as specifically noted below and is also not approved to apply in any other area where the 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). Washington's SIP is approved to apply on non-trust land within the exterior boundaries of the Puyallup Indian Reservation, also known as the 1873 Survey Area. Under the Puyallup Tribe of Indians Settlement Act of 1989, 25 U.S.C. 1773, Congress explicitly provided state and local agencies in Washington authority over activities on non-trust lands within the 1873 Survey Area.

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 28, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of this Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that the EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting, and Recordkeeping requirements.

    Dated: September 14, 2016. Dennis J. McLerran, Regional Administrator, Region 10.

    For the reasons stated above, 40 CFR part 52 is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart WW—Washington 2. In § 52.2470, amend paragraph (c) by: a. In Table 2—Additional Regulations Approved for Washington Department of Ecology (Ecology) Direct Jurisdiction, revising entries 173-400-110 and 173-400-112; and b. In Table 4—Additional Regulations Approved for the Benton Clean Air Agency (BCAA) Jurisdiction, revising entries 173-400-110 and 173-400-112.

    The revisions read as follows:

    § 52.2470 Identification of plan.

    (c) * * *

    Table 2—Additional Regulations Approved for Washington Department of Ecology (Ecology) Direct Jurisdiction [Applicable in Adams, Asotin, Chelan, Columbia, Douglas, Ferry, Franklin, Garfield, Grant, Kittitas, Klickitat, Lincoln, Okanogan, Pend Oreille, San Juan, Stevens, Walla Walla, and Whitman counties, excluding facilities subject to Energy Facilities Site Evaluation Council (EFSEC) jurisdiction, Indian reservations (excluding non-trust land within the exterior boundaries of the Puyallup Indian Reservation), and any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. These regulations also apply statewide for facilities subject to the applicability sections of WAC 173-400-700, 173-405-012, 173-410-012, and 173-415-012] State citation Title/subject State effective date EPA approval date Explanations Washington Administrative Code, Chapter 173-400—General Regulations for Air Pollution Sources *         *         *         *         *         *         * 173-400-110 New Source Review (NSR) for Sources and Portable Sources 12/29/12 9/29/16 [Insert Federal Register citation] Except: 173-400-110(1)(c)(ii)(C); 173-400-110(1)(e); 173-400-110(2)(d); The part of WAC 173-400-110(4)(b)(vi) that says, • “not for use with materials containing toxic air pollutants, as listed in chapter 173-460 WAC,”; The part of 400-110(4)(e)(iii) that says, • “where toxic air pollutants as defined in chapter 173-460 WAC are not emitted”; The part of 400-110(4)(f)(i) that says, • “that are not toxic air pollutants listed in chapter 173-460 WAC”; The part of 400-110(4)(h)(xviii) that says, • “, to the extent that toxic air pollutant gases as defined in chapter 173-460 WAC are not emitted”; The part of 400-110(4)(h)(xxxiii) that says, • “where no toxic air pollutants as listed under chapter 173-460 WAC are emitted”; The part of 400-110(4)(h)(xxxiv) that says, • “, or ≤1% (by weight) toxic air pollutants as listed in chapter 173-460 WAC”; The part of 400-110(4)(h)(xxxv) that says, • “or ≤1% (by weight) toxic air pollutants”; The part of 400-110(4)(h)(xxxvi) that says, • “or ≤1% (by weight) toxic air pollutants as listed in chapter 173-460 WAC”; 400-110(4)(h)(xl), second sentence; The last row of the table in 173-400-110(5)(b) regarding exemption levels for Toxic Air Pollutants. *         *         *         *         *         *         * 173-400-112 Requirements for New Sources in Nonattainment Areas—Review for Compliance with Regulations 12/29/12 9/29/16 [Insert Federal Register citation] *         *         *         *         *         *         * Table 4—Additional Regulations Approved for the Benton Clean Air Agency (BCAA) Jurisdiction [Applicable in Benton County, excluding facilities subject to Energy Facilities Site Evaluation Council (EFSEC) jurisdiction, Indian reservations and any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and facilities subject to the applicability sections of WAC 173-400-700, 173-405-012, 173-410-012, and 173-415-012] State/local citation Title/subject State/local
  • effective date
  • EPA approval date Explanations
    *         *         *         *         *         *         * Washington Department of Ecology Regulations Washington Administrative Code, Chapter 173-400—General Regulations for Air Pollution Sources *         *         *         *         *         *         * 173-400-110 New Source Review (NSR) for Sources and Portable Sources 12/29/12 9/29/16 [Insert Federal Register citation] Except: 173-400-110(1)(c)(ii)(C); 173-400-110(1)(e); 173-400-110(2)(d); The part of WAC 173-400-110(4)(b)(vi) that says, • “not for use with materials containing toxic air pollutants, as listed in chapter 173-460 WAC,”; The part of 400-110(4)(e)(iii) that says, • “where toxic air pollutants as defined in chapter 173-460 WAC are not emitted”; The part of 400-110(4)(f)(i) that says, • “that are not toxic air pollutants listed in chapter 173-460 WAC”; The part of 400-110(4)(h)(xviii) that says, • “, to the extent that toxic air pollutant gases as defined in chapter 173-460 WAC are not emitted”; The part of 400-110(4)(h)(xxxiii) that says, • “where no toxic air pollutants as listed under chapter 173-460 WAC are emitted”; The part of 400-110(4)(h)(xxxiv) that says, • “, or ≤1% (by weight) toxic air pollutants as listed in chapter 173-460 WAC”; The part of 400-110(4)(h)(xxxv) that says, • “or ≤1% (by weight) toxic air pollutants”; The part of 400-110(4)(h)(xxxvi) that says, • “or ≤1% (by weight) toxic air pollutants as listed in chapter 173-460 WAC”; 400-110(4)(h)(xl), second sentence; The last row of the table in 173-400-110(5)(b) regarding exemption levels for Toxic Air Pollutants. *         *         *         *         *         *         * 173-400-112 Requirements for New Sources in Nonattainment Areas—Review for Compliance with Regulations 12/29/12 9/29/16 [Insert Federal Register citation] *         *         *         *         *         *         *
    [FR Doc. 2016-23298 Filed 9-28-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2015-0403; FRL-9953-05-Region 4] Air Plan Approval; TN: Revisions to Logs and Reports for Startups, Shutdowns and Malfunctions AGENCY:

    Environmental Protection Agency.

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted by the State of Tennessee, through the Tennessee Department of Environment and Conservation (TDEC), on September 25, 2013. The SIP submittal includes a change to the TDEC regulation “Logs and Reports.” EPA is approving this SIP revision because it is consistent with the Clean Air Act (CAA or Act) and federal regulations governing SIPs.

    DATES:

    This rule will be effective October 31, 2016.

    ADDRESSES:

    EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2015-0403. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Brad Akers, Air Regulatory Management Section, Air Planning and Implementation Branch, Pesticides and Toxics Management Division, Region 4, U.S. Environmental Protection Agency, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. Mr. Akers can be reached by telephone at (404) 562-9089 or via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION: I. This Action

    EPA is approving a revision to the Tennessee SIP submitted by TDEC on September 25, 2013. Specifically, the submittal includes a change to remove the existing text of subparagraph (2) from Tennessee Air Pollution Control Regulation (TAPCR) Rule 1200-3-20-.04, “Logs and Reports,” and replace it with the word “Reserved.” Subparagraph (2) provided that all sources located in or having a significant impact on a nonattainment area submit a quarterly report to the Technical Secretary of Tennessee's Air Pollution Control Board that: (1) Identifies periods of startups, shutdowns, and/or malfunctions (SSM events) that result in an exceedance of an emission limitation, (2) estimates the excess emissions released during such SSM events, and (3) provides total source emissions where such emissions are not otherwise required to be reported under Tennessee Air Pollution Control Regulations (TAPCR) Chapters 1200-3-10-.02 or 1200-3-16. EPA is approving Tennessee's September 25, 2013, SIP revision because the proposed revision is consistent with the requirements of the CAA and federal regulations governing SIPs. EPA received no comments on the July 27, 2016 (81 FR 49201), proposed rulemaking.

    II. Background A. Summary of the September 25, 2013, SIP Revision

    The CAA and rules governing SIPs in 40 CFR part 51 require recordkeeping and reporting to ensure that sources are in compliance with enforceable emission limits. Paragraph (2) of TAPCR Rule 1200-3-20-.04 initially helped to satisfy these requirements by providing for quarterly reports of excess emissions during SSM events, as well as total quarterly emissions. Removing this paragraph eliminates a set of requirements covering all source types, including major sources; sources that restrain their “potential to emit” to a level that is below the major source applicability threshold through the use of emissions control, restriction on hours of operation, or other means (“synthetic minor source”); and those sources for which potential emissions are below the major source thresholds, even assuming no emission controls and unlimited hours of operation (“true minor sources”). Tennessee's September 25, 2013, SIP submittal demonstrates that CAA requirements for recordkeeping and reporting will continue to be met, as applicable, considering other federal and state regulations.

    Major sources in Tennessee are subject to title V of the CAA at 40 CFR part 70. This requires: (1) Sources to submit reports of any required monitoring at least every six months at 40 CFR 70.6(a)(3)(iii)(A), including all instances of deviations from permit requirements; (2) an annual compliance certification at 40 CFR 70.6(c)(5); and (3) prompt reporting of deviations from permit requirements at 40 CFR 70.6(a)(3)(iii)(B). TDEC has adopted these requirements into its federally-approved title V operating permits program at TAPCR Rule 1200-3-9-.02(11)(e)1(iii)(III)I, 1200-3-9-.02(11)(e)3(v), and 1200-3-9-.02(11)(e)1(iii)(III)II, respectively.

    In addition to the title V reporting requirements, Tennessee's SIP authorizes the Tennessee Air Pollution Control Board's Technical Secretary to require enhanced reporting as needed to verify that a “major stationary source” is operating in compliance with applicable requirements. See TAPCR Chapter 1200-3-10-.04(2). Likewise, Tennessee's SIP at TAPCR Rule 1200-3-10-.02, “Monitoring of Source Emissions, Recording, Reporting of the Same are Required,” at paragraph (1)(a) states: “The Technical Secretary may require the owner or operator of any air contaminant source discharging air contaminants . . . to . . . make periodic emission reports as required in paragraph (2).” Paragraph (2)(a) clarifies that “[r]ecords and reports as the Technical Secretary shall prescribe,” must be collected and submitted. Finally, TAPCR Rule 1200-3-20-.08, “Special Reports Required,” states that the Technical Secretary “may require any air contaminant source to submit a report within thirty (30) days after the end of each calendar quarter” containing dates and details of any SSM events and resultant emissions in excess of applicable limitations. Thus, the SIP contains provisions that allow TDEC to collect reports similar to those in TAPCR 1200-3-20-.04(2) when deemed necessary to determine a source's compliance with applicable requirements. TAPCR 1200-3-20-.04(1), requiring sources to collect and maintain records regarding SSM events and resultant excess emissions, also remains in effect.

    Regarding total emissions, the State is also required to report to EPA triennial reports of annual (12-month) emissions for all sources and every-year reports of annual emissions of criteria air pollutants and their precursors for all major sources as well as annual emissions reporting from certain larger sources. See subpart A to 40 CFR part 51, the “Air Emissions Reporting Requirements,” or “AERR.” Further details are provided in the July 27, 2016, proposed rule.

    Synthetic minor sources, in accordance with SIP-approved TAPCR 1200-3-9-.02(11)(a), are subject to an enforceable limit restricting potential to emit and must implement “detailed monitoring, reporting and recordkeeping requirements that prove the source is abiding by its more restrictive emission and/or production limits.” TDEC's synthetic minor permits require: (1) Prompt reporting of any non-compliance with permit conditions designed to restrict “potential to emit” below the major source level (the “synthetic minor limit”), (2) submission of an annual compliance certification supported by records documenting the facility's compliance with its synthetic minor limit, and (3) reporting of excess emissions due to malfunctions in accordance with TAPCR Chapter 1200-3-20-.03. Thus, Tennessee can determine compliance with the applicable permit conditions for synthetic minor sources.

    Reserving paragraph TAPCR 1200-3-20-.04(2) eliminates the requirement that true minor sources report excess emissions and total emissions to the State. There is no general federal requirement for true minor sources to directly report their emissions to the state or to EPA. The State explains in its submittal that true minor sources were never intended to be required to make these types of reports, but that the regulated community has expanded to include many smaller sources since the Rule's adoption in the TAPCR in 1979. Total emissions from true minor sources are still considered, either in aggregate or via specific reporting. True minor sources with emissions of oxides of nitrogen or volatile organic compounds above 25 tons per year (tpy) report total emissions annually to the State in ozone nonattainment areas, pursuant to TAPCR 1200-3-18-.02(8). Additionally, the AERR requires the state to report emissions from sources at lower thresholds for select criteria air pollutants or precursors in certain nonattainment areas, which may include true minor sources. The AERR also provides for reporting of lead emissions greater than or equal to 0.5 tpy, regardless of an area's attainment status with respect to the lead NAAQS. Otherwise, emissions from true minor sources are reported to EPA in aggregate in accordance with the AERR. Finally, Tennessee noted the Technical Secretary's authority under 1200-3-10-.02(1)(a) to collect reports from “any air contaminant source.” TDEC explains that if there were a reason to think a true minor source was impacting air quality standards, the Division of Air Pollution Control could collect these reports of emissions.

    The combination of federal reporting requirements, reporting requirements under Tennessee's SIP, and Tennessee's authority to request additional information on source emissions when necessary, provide that Tennessee's September 25, 2013, SIP revision does not impair Tennessee's ability to determine the nature and amount of emissions from both major and minor sources and whether such sources are operating in compliance with Tennessee's SIP. Accordingly, EPA's final approval of Tennessee's September 25, 2013, SIP revision is consistent with the minimum SIP requirements pertaining to enforceability and emissions reporting. For more information, see the July 27, 2016, proposed rule (81 FR 49201). EPA received no comments on the proposed rulemaking.

    B. SSM SIP Call Considerations

    In this action, EPA is not approving or disapproving revisions to any existing emission limitations that apply during SSM events. EPA notes that on June 12, 2015 (80 FR 33840), the Agency published a formal finding that a number of states have SIPs with SSM provisions that are contrary to the CAA and existing EPA guidance. Accordingly, EPA issued a formal “SIP call” requiring the affected states to make a SIP submission to correct the deficient SSM regulations. Id. In that final action, EPA determined that TAPCR Chapter 1200-3-20 has provisions that are contrary to the CAA, specifically paragraph (1) of Rule 1200-3-20-.07, “Report Required upon the Issuance of Notice of Violation.” This final action only deals with the deletion of a separate reporting requirement which is reasonably covered by other requirements, and does not impact the provision of the Tennessee Rule implicated in the SSM SIP call, this proposed action does not contradict the finding of inadequacy regarding TAPCR 1200-3-20-.07(1).

    III. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of TAPCR 1200-3-20-.04, entitled “Logs and Reports,” effective June 19, 2013, which removed a quarterly reporting requirement for total emissions and for excess emissions during SSM. Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally-enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1 EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

    1 62 FR 27968 (May 22, 1997).

    IV. Final Action

    EPA is taking final action to approve the September 25, 2013, Tennessee SIP revision. This final approval includes the section 110(l) demonstration that modifying the SIP to remove TAPCR 1200-3-20-.04(2) will not interfere with attainment or maintenance of any NAAQS or with any other applicable requirement of the CAA, and the demonstration that the SIP revision is consistent with section 193 of the Act because it does not address any emissions reduction or emissions control requirement and will have no effect on the emissions of any air pollutant.

    V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

    • Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

    • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

    • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

    • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

    • Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

    • Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

    • Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

    • Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

    • Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

    The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 28, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Incorporation by reference, Reporting and recordkeeping requirements.

    Dated: September 15, 2016. Kenneth R. Lapierre, Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42.U.S.C. 7401 et seq.

    Subpart RR—Tennessee 2. In § 52.2220, table 1 in paragraph (c) is amended by revising the entry for “Section 1200-3-20-.04” to read as follows:
    § 52.2220 Identification of plan.

    (c) * * *

    Table 1—EPA-Approved Tennessee Regulations State citation Title/subject State effective date EPA approval date Explanation *         *         *         *         *         *         * Chapter 1200-3-20 Limits on Emissions Due to Malfunctions, Start-Ups, and Shutdowns *         *         *         *         *         *         * Section 1200-3-20-.04 Logs and reports 6/19/2013 9/29/2016, [Insert Federal Register citation] *         *         *         *         *         *         *
    [FR Doc. 2016-23302 Filed 9-28-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 64 [Docket ID FEMA-2016-0002; Internal Agency Docket No. FEMA-9999] Suspension of Community Eligibility AGENCY:

    Federal Emergency Management Agency, DHS.

    ACTION:

    Final rule.

    SUMMARY:

    This rule identifies a community where the sale of flood insurance has been authorized under the National Flood Insurance Program (NFIP) that is scheduled for suspension on the effective date listed within this rule because of noncompliance with the floodplain management requirements of the program. If the Federal Emergency Management Agency (FEMA) receives documentation that the community has adopted the required floodplain management measures prior to the effective suspension date given in this rule, the suspension will not occur and a notice of this will be provided by publication in the Federal Register on a subsequent date. Also, information identifying the current participation status of a community can be obtained from FEMA's Community Status Book (CSB). The CSB is available at http://www.fema.gov/national-flood-program-community-status-book.

    DATES:

    The effective date of the community's scheduled suspension is the third date (“Susp.”) listed in the third column of the following tables.

    FOR FURTHER INFORMATION CONTACT:

    If you want to determine whether a particular community was suspended on the suspension date or for further information, contact Patricia Suber, Federal Insurance and Mitigation Administration, Federal Emergency Management Agency, 400 C Street SW., Washington, DC 20472, (202) 646-4149.

    SUPPLEMENTARY INFORMATION:

    The NFIP enables property owners to purchase Federal flood insurance that is not otherwise generally available from private insurers. In return, communities agree to adopt and administer local floodplain management measures aimed at protecting lives and new construction from future flooding. Section 1315 of the National Flood Insurance Act of 1968, as amended, 42 U.S.C. 4022, prohibits the sale of NFIP flood insurance unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The community listed in this document no longer meet that statutory requirement for compliance with program regulations, 44 CFR part 59. Accordingly, the community will be suspended on the effective date in the third column. As of that date, flood insurance will no longer be available in the community. We recognize that this community may adopt and submit the required documentation of legally enforceable floodplain management measures after this rule is published but prior to the actual suspension date. This community will not be suspended and will continue to be eligible for the sale of NFIP flood insurance. A notice withdrawing the suspension of such communities will be published in the Federal Register.

    In addition, FEMA published a Flood Insurance Rate Map (FIRM) that identifies the Special Flood Hazard Areas (SFHAs) in this community. The date of the FIRM is indicated in the fourth column of the table. No direct Federal financial assistance (except assistance pursuant to the Robert T. Stafford Disaster Relief and Emergency Assistance Act not in connection with a flood) may be provided for construction or acquisition of buildings in identified SFHAs for communities not participating in the NFIP and identified for more than a year on FEMA's initial FIRM for the community as having flood-prone areas (section 202(a) of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4106(a), as amended). This prohibition against certain types of Federal assistance becomes effective for the community listed on the date shown in the last column. The Administrator finds that notice and public comment procedures under 5 U.S.C. 553(b), are impracticable and unnecessary because the community listed in this final rule has been adequately notified. In accordance with 44 CFR 59.24(d), the community received a 30-day notification letter addressed to the Chief Executive Officer stating that the community will be suspended unless the required floodplain management measures are met prior to the effective suspension date. Since these notifications were made, this final rule may take effect within less than 30 days.

    National Environmental Policy Act. This rule is categorically excluded per the requirements of FEMA Instruction 108-1-1 and DHS Instruction 023-01-001-01. No environmental impact assessment has been prepared.

    Regulatory Flexibility Act. The Administrator has determined that this rule is exempt from the requirements of the Regulatory Flexibility Act because the National Flood Insurance Act of 1968, as amended, Section 1315, 42 U.S.C. 4022, prohibits flood insurance coverage unless an appropriate public body adopts adequate floodplain management measures with effective enforcement measures. The community listed no longer comply with the statutory requirements, and after the effective date, flood insurance will no longer be available in the community unless remedial action takes place.

    Regulatory Classification. This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735.

    Executive Order 13132, Federalism. This rule involves no policies that have federalism implications under Executive Order 13132.

    Executive Order 12988, Civil Justice Reform. This rule meets the applicable standards of Executive Order 12988.

    Paperwork Reduction Act. This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

    List of Subjects in 44 CFR Part 64

    Flood insurance, Floodplains.

    Accordingly, 44 CFR part 64 is amended as follows:

    PART 64—[AMENDED] 1. The authority citation for part 64 continues to read as follows: Authority:

    42 U.S.C. 4001 et seq.; Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp.; p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp.; p. 376.

    § 64.6 [Amended]
    2. The tables published under the authority of § 64.6 are amended as follows: State and location Community No. Effective date authorization/
  • cancellation of sale of flood insurance
  • in community
  • Current effective
  • map date
  • Date certain
  • Federal
  • assistance
  • no longer available in SHFAs
  • Region III Virginia: Louisa County, Unincorporated Areas 510092 March 1, 1972; Emergency; June 1, 1989; Reg; October 31, 2016; Susp November 5, 1997. October 31, 2016.
    (Catalog of Federal Domestic Assistance No. 83.100, “Flood Insurance.”)
    Dated: September 16, 2016. Michael M. Grimm, Assistant Administrator for Mitigation, Federal Insurance Mitigation Administration, Department of Homeland Security, Federal Emergency Management Agency.
    [FR Doc. 2016-23459 Filed 9-28-16; 8:45 am] BILLING CODE 9110-12-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 2 and 90 [PS Docket No. 13-87; PS Docket No. 06-229, WT Docket No. 96-86, RM-11433 and RM- 11577, FCC 16-111] Service Rules Governing Narrowband Operations in the 769-775/799-805 MHz Bands AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    In this Order on Reconsideration, the Federal Communications Commission (Commission) provides more flexibility to radio equipment manufacturers interested in the marketing and sale of 700 MHz equipment to public safety agencies by revising the Commission's rules and providing more time for interoperability testing of equipment designed to operate on the 700 MHz narrowband interoperability channels. The Commission balances the needs of manufacturers for flexibility with public safety's need for verified interoperable communications during emergencies. The Commission also provides guidance to states that wish to delegate administration of certain 700 MHz narrowband channels and corrects certain rules governing public safety spectrum.

    DATES:

    Effective September 29, 2016, except for §§ 2.1033(c)(20) and 90.548(c), containing new or modified information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act of 1995, which will become effective after such approval, on the effective date specified in a notification that the Commission will publish in the Federal Register announcing such approval and effective date.

    FOR FURTHER INFORMATION CONTACT:

    John Evanoff, Policy and Licensing Division, Public Safety and Homeland Security Bureau, (202) 418-0848 or [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Order on Reconsideration in PS Docket No. 13-87, FCC 16-111, released on August 22, 2016. The document is available for download at http://fjallfoss.fcc.gov/edocs_public/. The complete text of this document is also available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

    In 2014, the Commission adopted a Report and Order in the captioned proceeding, which, inter alia, provided that mobile and portable 700 MHz public safety band radios designed to operate on the 700 MHz interoperability channels would be presumed interoperable if they received Project 25 Compliance Acceptance Program (CAP) approval (hereinafter referred to as P25 CAP), 79 FR 71321 (Dec. 2, 2014). In the alternative, manufacturers could accompany their equipment certification applications with other documentation demonstrating how the radio submitted for certification complied with Project 25 standards and was interoperable across vendors. The Telecommunications Industry Association (TIA) filed a timely petition for reconsideration of the Report and Order, 80 FR 4239 (Jan. 27, 2015).

    In this Order on Reconsideration, the Commission grants the Petition in part and modifies those rules to provide greater flexibility to manufacturers considering the marketing and sale of equipment to public safety. In particular, this Order on Reconsideration allows CAP compliance or the equivalent to be demonstrated after equipment certification but prior to the marketing or sale of that equipment. Thereby manufacturers may obtain FCC equipment authorization for equipment designed to operate on the 700 MHz narrowband interoperability channels before obtaining P-25 CAP approval or the equivalent. P-25 CAP approval, or the equivalent, however, must be obtained before equipment is marketed or sold, thus mitigating the risk to public safety, including state and local governmental entities, that equipment purchased may not be interoperable across vendors. Lack of interoperability can severely compromise public safety agencies' response to emergencies. The Commission concludes that CAP compliance or the equivalent completed before the marketing or sale of equipment to public safety mitigates the risk of lack of interoperability while accommodating the needs of manufacturers for flexibility in the equipment certification and P-25 CAP, or equivalent, processes. For these reasons, the Commission modifies Sections 2.1033(c)(20) and 90.548(c) of the rules.

    Separately, in response to a request for clarification filed by the National Regional Planning Council (NRPC), the Commission clarifies that states may delegate administration of the 700 MHz air-ground channels to the 700 MHz Regional Planning Committees (RPCs). The Commission also amends Section 90.535 of the Commission's rules to reflect its previous decision to eliminate the 700 MHz narrowbanding deadline. Additionally, the Commission corrects Sections 90.209 and 90.210 of the Commission's technical rules to accurately reflect bandwidth limitations and emission masks. Finally, the Commission conforms Sections 90.523(a)-(d) to the introductory sentence of Section 90.523, to reflect the restriction of the public safety narrowband spectrum bands to 769-775/799-805 MHz, as required by the Middle Class Tax Relief and Job Creation Act of 2012 (Spectrum Act).

    Procedural Matters A. Supplemental Final Regulatory Flexibility Analysis

    The Regulatory Flexibility Act of 1980, as amended (RFA), requires that a regulatory flexibility analysis be prepared for notice-and-comment rule making proceedings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the U.S. Small Business Administration (SBA). Pursuant to the RFA, a Final Regulatory Flexibility Analysis (“FRFA”) was incorporated into the Report and Order.

    This Order on Reconsideration amends the rules adopted in the Report and Order in this proceeding to provide manufacturers with greater flexibility in the equipment authorization process. Those rules required demonstration of Project 25 compliance (through CAP or otherwise) at the time of the filing of the equipment authorization application, when certain aspects of CAP compliance may be more difficult to demonstrate (e.g., the lack of availability of product versions needed for interoperability testing). Instead, the Order on Reconsideration requires CAP certification (or other demonstration of Project 25 compliance) before radios may be marketed or sold. This change preserves public safety interoperability goals while providing manufacturers with needed additional flexibility.

    This Order on Reconsideration also clarifies that States may delegate the administration of the 700 MHz air-ground channels to 700 MHz Regional Planning Committees; amends Section 90.523 of the rules to accurately reflect the 700 MHz narrowband public safety bands; and amends Section 90.535 of the rules to implement the Commission's decision to eliminate the 700 MHz narrowbanding mandate. Finally, the Order on Reconsideration corrects Sections 90.209 and 90.210 of the Commission's technical rules to accurately reflect the correct bandwidth limitations and emission masks.

    B. Paperwork Reduction Act of 1995 Analysis

    The Order on Reconsideration contains new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collection requirements contained in this proceeding.

    C. Congressional Review Act

    The Commission will send a copy of this Order on Reconsideration to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

    D. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules

    None.

    Ordering Clauses

    Accordingly, it is ordered that, pursuant to Sections 1, 4(i), 303, 316, 332, 337, and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 303, 316, 332, 337, 405, this Order on Reconsideration is hereby adopted.

    It is ordered pursuant to Sections 4(i) and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 405, and Section 1.429 of the Commission's rules, 47 CFR 1.429, that the Petition for Reconsideration filed by the Telecommunications Industries Association on January 2, 2015, IS GRANTED to the extent discussed herein.

    It is further ordered that Sections 2.1033(c)(20), 90.209, 90.210, 90.523, 90.535(d) and 90.548(c) of the Commission's rules are AMENDED. The amendments to Sections 2.1033(c)(20) and 90.548(c) require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act and shall become effective after the Commission publishes a notification in the Federal Register announcing such approval and the relevant effective date. The amendments to Sections 90.209, 90.210, 90.523, and 90.535(d) shall become effective on publication of this Order on Reconsideration in the Federal Register.

    It is further ordered, that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Order on Reconsideration, including the Supplemental Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

    List of Subjects in 47 CFR Parts 2 and 90 Radio. Federal Communications Commission. Gloria J. Miles, Federal Register Liaison Officer. Office of the Secretary.

    For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 2 and 90 as follows:

    PART 2—FREQUENCY ALLOCATIONS AND RADIO TREATY MATTERS; GENERAL RULES AND REGULATIONS 1. The authority citation for part 2 continues to read as follows: Authority:

    47 U.S.C. 154, 302a, 303, 336, unless otherwise noted.

    2. Section 2.1033 is amended by revising paragraph (c)(20) to read as follows:
    § 2.1033 Application for certification.

    (c) * * *

    (20) Before equipment operating under part 90 of this chapter and capable of operating on the 700 MHz interoperability channels (See § 90.531(b)(1) of this chapter) may be marketed or sold, the manufacturer thereof shall have a Compliance Assessment Program Supplier's Declaration of Conformity and Summary Test Report or, alternatively, a document detailing how the manufacturer determined that its equipment complies with § 90.548 of this chapter and that the equipment is interoperable across vendors. Submission of a 700 MHz narrowband radio for certification will constitute a representation by the manufacturer that the radio will be shown, by testing, to be interoperable across vendors before it is marketed or sold.

    PART 90—PRIVATE LAND MOBILE RADIO SERVICES 3. The authority citation for part 90 continues to read as follows: Authority:

    Sections 4(i), 11, 303(g), 303(r), and 332(c)(7) of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 161, 303(g), 303(r), and 332(c)(7), and Title VI of the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, 126 Stat. 156.

    4. Section 90.209 is amended in the table in paragraph (b)(5) by revising the entries for “406-512” and “809-824/854-869” to read as follows:
    § 90.209 Bandwidth limitations.

    (b) * * *

    (5) * * *

    Standard Channel Spacing/Bandwidth Frequency band
  • (MHz)
  • Channel spacing
  • (kHz)
  • Authorized
  • bandwidth
  • (kHz)
  • *    *    *    *    * 406-512 2 1 6.25 1 3 6 20/11.25/6 *    *    *    *    * 809-824/854-869 25 6 20 *    *    *    *    * 1 For stations authorized on or after August 18, 1995. 2 Bandwidths for radiolocation stations in the 420-450 MHz band and for stations operating in bands subject to this footnote will be reviewed and authorized on a case-by-case basis. 3 Operations using equipment designed to operate with a 25 kHz channel bandwidth will be authorized a 20 kHz bandwidth. Operations using equipment designed to operate with a 12.5 kHz channel bandwidth will be authorized a 11.25 kHz bandwidth. Operations using equipment designed to operate with a 6.25 kHz channel bandwidth will be authorized a 6 kHz bandwidth. All stations must operate on channels with a bandwidth of 12.5 kHz or less beginning January 1, 2013, unless the operations meet the efficiency standard of § 90.203(j)(3). * * * * * 6 Operations using equipment designed to operate with a 25 kHz channel bandwidth may be authorized up to a 22 kHz bandwidth if the equipment meets the Adjacent Channel Power limits of § 90.221.
    5. Section 90.210 is amended by revising paragraph (h)(5) to read as follows:
    § 90.210 Emission masks.

    (h) * * *

    (5) On any frequency removed from the center of the authorized bandwidth by more than 25 kHz: At least 43 + 10 log (P) dB.

    6. Section 90.523 is amended by revising paragraphs (a), (b) introductory text, (c), and (d) to read as follows:
    § 90.523 Eligibility.

    (a) State or local government entities. Any territory, possession, state, city, county, town, or similar State or local governmental entity is eligible to hold authorizations in the 769-775 MHz and 799-805 MHz frequency bands.

    (b) Nongovernmental organizations. A nongovernmental organization (NGO) that provides services, the sole or principal purpose of which is to protect the safety of life, health, or property, is eligible to hold an authorization for a system operating in the 769-775 MHz and 799-805 MHz frequency bands for transmission or reception of communications essential to providing such services if (and only for so long as) the NGO applicant/licensee:

    (c) All NGO authorizations are conditional. NGOs assume all risks associated with operating under conditional authority. Authorizations issued to NGOs to operate systems in the 769-775 MHz and 799-805 MHz frequency bands include the following condition: If at any time the supporting governmental entity (see paragraph (b)(1) of this section) notifies the Commission in writing of such governmental entity's termination of its authorization of a NGO's operation of a system in the 769-775 MHz and 799-805 MHz frequency bands, the NGO's application shall be dismissed automatically or, if authorized by the Commission, the NGO's authorization shall terminate automatically.

    (d) Paragraphs (a) and (b) of this section notwithstanding, no entity is eligible to hold an authorization for a system operating in the 769-775 MHz and 799-805 MHz frequency bands on the basis of services, the sole or principal purpose of which is to protect the safety of life, health or property, that such entity makes commercially available to the public.

    7. Section 90.535(d) is revised to read as follows:
    § 90.535 Modulation and spectrum usage efficiency requirements.

    (d) Transmitters designed to operate on the channels listed in paragraphs (b)(2), (5), (6), and (7) of § 90.531 must be capable of operating in the voice mode at an efficiency of at least one voice path per 12.5 kHz of spectrum bandwidth.

    8. Section 90.548(c) is revised to read as follows:
    § 90.548 Interoperability Technical Standards.

    (c) Transceivers capable of operating on the interoperability channels listed in § 90.531(b)(1) shall not be marketed or sold unless the transceiver has previously been certified for interoperability by the Compliance Assessment Program (CAP) administered by the U.S. Department of Homeland Security; provided, however, that this requirement is suspended if the CAP is discontinued. Submission of a 700 MHz narrowband radio for certification will constitute a representation by the manufacturer that the radio will be shown, by testing, to be interoperable across vendors before it is marketed or sold. In the alternative, manufacturers may employ their own protocol for verifying compliance with Project 25 standards and determining that their product is interoperable among vendors. In the event that field experience reveals that a transceiver is not interoperable, the Commission may require the manufacturer thereof to provide evidence of compliance with this section.

    [FR Doc. 2016-22432 Filed 9-28-16; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 543 [Docket No. NHTSA-2014-0007] RIN 2127-AL08 Exemption From Vehicle Theft Prevention Standard AGENCY:

    National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).

    ACTION:

    Final rule.

    SUMMARY:

    In this rulemaking action, NHTSA is finalizing procedures for obtaining an exemption from the vehicle theft prevention standard for vehicles equipped with immobilizers.

    An immobilizer is an anti-theft device that combines microchip and transponder technology with engine and fuel immobilizer components that can prevent vehicles from starting unless a verified code is received by the transponder. This final rule streamlines the exemption procedure for immobilizer-equipped vehicles by adding performance criteria for immobilizers. The criteria, which roughly correlate with the types of qualities for which petitioners have been submitting testing and technical design details under existing procedures, closely follow the immobilizer performance requirements in the anti-theft standard of Canada. After this final rule, it would be sufficient for a manufacturer seeking the exemption of some of its vehicles to provide data showing that the device meets the performance criteria, as well as a statement that the device is durable and reliable. Adopting these performance criteria for immobilizers bring the U.S. anti-theft requirements more into line with those of Canada.

    DATES:

    Effective Date: This rule is effective November 28, 2016.

    Petitions for Reconsideration: Petitions for reconsideration of this final rule must be received not later than November 14, 2016.

    ADDRESSES:

    Petitions for reconsideration of this final rule must refer to the docket and notice number set forth above and be submitted to the Administrator, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    For technical issues: Mr. Hisham Mohamed, Office of Consumer Programs, NHTSA, 1200 New Jersey Avenue SE., West Building, Washington, DC 20590 (Telephone: (202) 366-0307) (Fax: (202) 493-2990).

    For legal issues: Mr. Ryan Hagen, Office of the Chief Counsel, NHTSA, 1200 New Jersey Avenue SE., West Building, Washington, DC 20590 (Telephone: (202) 366-2992) (Fax: (202) 366-3820).

    SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary II. Background A. Effectiveness of Immobilizers in Reducing or Deterring Theft B. U.S. Canada Regulatory Cooperation Council C. Canadian Motor Vehicle Safety Standard No. 114 III. Proposed Rule IV. Overview of Comments V. Response to Comments and Differences Between the Final Rule and NPRM VI. Costs, Benefits, and Compliance Date VII. Regulatory Notices and Analyses I. Executive Summary

    This rulemaking action amends 49 CFR part 543, Exemption from Vehicle Theft Prevention Standard, by adding performance criteria for immobilizers. The agency has granted many exemptions from the theft prevention standard to vehicle lines on the basis that they were equipped with immobilizers. In support of petitions for these exemptions, manufacturers have provided a substantial amount of data seeking to demonstrate the effectiveness of immobilizers in reducing motor vehicle theft.

    The criteria, which roughly correlate with the types of qualities for which petitioners have been submitting testing and technical design details under existing procedures, use the same four performance requirements from the Transport Canada standard. For those performance requirements, the Canadian standard also sets forth tests that manufacturers of vehicles to be sold in Canada must certify to Canadian authorities that they have conducted.

    Adopting these performance criteria would simplify the exemption process for manufacturers who installed immobilizers meeting those criteria. Currently, in their petitions for exemption, vehicle manufacturers describe the testing that they have conducted on the immobilizer device and aspects of design of the immobilizer that address the areas of performance which the agency has determined are important to gauge the effectiveness of the immobilizer in reducing and deterring motor vehicle theft. Adding performance criteria for immobilizers as another means of qualifying for an exemption from the U.S. theft prevention standard will allow manufacturers that are installing immobilizers as standard equipment for a line of motor vehicles in compliance with Canadian theft prevention standards to more easily gain an exemption here. This would reduce the amount of material that manufacturers would need to submit to obtain an exemption because manufacturers would only be required to indicate and demonstrate that the immobilizer met the performance criteria and was durable and reliable to be eligible for an exemption.

    This final rule allows manufacturers to obtain an exemption from the theft prevention standards by complying with any of the four performance criteria currently accepted by Transport Canada. The adoption of the performance criteria for immobilizers would bring the U.S. anti-theft requirements more into line with those of Canada. This harmonization of U.S. and Canadian requirements is being undertaken pursuant to ongoing bilateral regulatory cooperation efforts. Additionally, two of the performance criteria added by this rule are United Nations Economic Commission for Europe (UN/ECE) standards, which will allow for greater global harmonization.

    We are retaining the current criteria for gaining an exemption from the vehicle theft prevention standard. Therefore, manufacturers would still be able to petition the agency to install other anti-theft devices as standard equipment in a vehicle line to obtain an exemption from the theft prevention standard. While NHTSA has granted many petitions for exemption from the theft prevention standard for vehicle lines equipped with an immobilizer type anti-theft device, we note that a manufacturer is not required to install an immobilizer in order to gain an exemption. We note also that this would not increase the number of exemptions from the theft prevention standard available to a manufacturer.

    II. Background

    The Motor Vehicle Theft Law Enforcement Act (the Theft Act), 49 U.S.C. 33101 et seq., directs NHTSA 1 to establish theft prevention standards for light duty trucks and multipurpose passenger vehicles (MPVs) with a gross vehicle weight rating of 6,000 pounds or less and passenger cars. The Theft Act also allows NHTSA to exempt one vehicle line per model year per manufacturer from the theft prevention standard if the vehicle is equipped with an anti-theft device that the agency “decides is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the [theft prevention] standard.” 49 U.S.C. 33106(b). The statute states that in order to obtain an exemption, manufacturers must file a petition that describes the anti-theft device in detail, states the reason that the manufacturer believes that the device will be effective in reducing or deterring theft, and contains additional information that NHTSA determines is necessary to decide whether the anti-theft device “is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the [theft prevention] standard.” 2

    1 The Secretary of Transportation's responsibilities under the Theft Act have been delegated to NHTSA pursuant to 49 CFR 1.95.

    2Id.

    Pursuant to the Theft Act, NHTSA issued 49 CFR part 541, Federal Motor Vehicle Theft Prevention Standard, which requires manufacturers of vehicles identified by the agency as likely high-theft vehicle lines to inscribe or affix vehicle identification numbers or symbols on certain components of new vehicles and replacement parts.3 The agency refers to this requirement as the parts marking requirement.

    3 Part 541 requires the following major parts to be marked: The engine, the transmission, the hood, the right and left front fenders, the right and left front doors, the right and left rear door (four-door models), the sliding or cargo doors, the decklid, tailgate or hatchback (whichever is present), the front and rear bumpers, and the right and left quarter panels. The right and left side assemblies must be marked on MPVs and the cargo box must be marked on light duty trucks.

    NHTSA promulgated part 543 to establish the process for submitting petitions for exemption from the parts marking requirements in the theft prevention standard. A manufacturer may petition the agency for an exemption from the parts marking requirements for one vehicle line per model year if the manufacturer installs an anti-theft device as standard equipment on the entire line. In order to be eligible for an exemption, part 543 requires manufacturers to submit a petition explaining how the anti-theft device will promote activation, attract attention to the efforts of unauthorized persons to enter or operate a vehicle by means other than a key, prevent defeat or circumvention of the device by unauthorized persons, prevent operation of the vehicle by unauthorized entrants, and ensure the reliability and durability of the device. Based on the materials in the petition, NHTSA decides whether to grant the petition in whole or in part or to deny it.

    Under the existing part 543, manufacturers choose how they wish to demonstrate to the agency that the anti-theft device they are installing in a vehicle line meets the factors listed in § 543.6. Manufacturers provide differing levels of detail in their exemption petitions. Manufacturers typically provide engineering diagrams of the anti-theft device, a description of how the device functions, and testing to show that the device is durable and reliable in their petitions for exemption. Manufacturers also describe how the design of the anti-theft device satisfies the factors listed in § 543.6.

    A. Effectiveness of Immobilizers in Reducing or Deterring Theft

    Nearly 700,000 motor vehicle thefts took place in the U.S. in 2013, causing a loss of mobility and economic hardship to those affected.4 The estimated value of motor vehicles stolen in 2011 was $4.1 billion, averaging $5,972 per stolen vehicle.5 Of the vehicles stolen in the United States, nearly 45 percent are never recovered.6 While the number of motor vehicle thefts fell 3.3 percent from 2012 to 2013, vehicle theft remains an ongoing problem in the U.S.7 According to the FBI, a motor vehicle was stolen every 45 seconds in 2013.8

    4https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2013/crime-in-the-u.s.-2013/property-crime/motor-vehicle-theft-topic-page/mvtheftmain_final.pdf (last accessed February 10, 2016).

    5Id.

    6http://www.nhtsa.gov/Vehicle+Safety/Vehicle-Related+Theft/Theft+Prevention (last accessed February 10, 2016).

    7https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2013/crime-in-the-u.s.-2013/property-crime/motor-vehicle-theft-topic-page (last accessed February 10, 2016).

    8http://www.trafficsafetymarketing.gov/newtsm/VehicleTheftPrevention/11539-VehicleTheftPrevention-FactSheet.pdf (last accessed February 10, 2016).

    An immobilizer is a type of anti-theft device based on microchip and transponder technology and combined with engine and fuel immobilizer components. When activated, an immobilizer device disables the vehicle's electrical or fuel systems at several points and prevents the vehicle from starting unless the correct code is received by the transponder.

    NHTSA is aware of several sources of information demonstrating the effectiveness of immobilizer devices in reducing motor vehicle theft. In the 1980s, General Motors Corporation (GM) used an early generation of microchip devices, which later developed into the rolling code transponder device, which is currently installed in GM as well as many other vehicles. According to the Highway Loss Data Institute (HLDI), immobilizer devices are up to 50 percent effective in reducing vehicle theft.9 The September 1997 Theft Loss Bulletin from the HLDI reported an overall theft decrease of approximately 50 percent for both the Ford Mustang and Taurus lines upon installation of an immobilizer device. Ford Motor Company claimed that its MY 1997 Mustang vehicle line (with an immobilizer) led to a 70 percent reduction in theft compared to its MY 1995 Mustang (without an immobilizer).10 Chrysler Corporation informed the agency that the inclusion of an immobilizer device as standard equipment on the MY 1999 Jeep Grand Cherokee resulted in a 52 percent net average reduction in vehicle thefts.11

    9 See http://www.iihs.org/iihs/news/desktopnews/theft-losses-decline-by-half-when-cars-are-equipped-with-immobilizing-antitheft-devices (last accessed February 10, 2016).

    10 77 FR 1974 (January 12, 2012).

    11 76 FR 68262 (November 3, 2011).

    Mitsubishi Motors Corporation informed the agency that the theft rate for its MY 2000 Eclipse vehicle line (with an immobilizer device) was almost 42 percent lower than that of its MY 1999 Eclipse (without a immobilizer device).12 Mazda Motor Corporation reported that a comparison of theft loss data showed an average theft reduction of approximately 50 percent after an immobilizer device was installed as standard equipment in a vehicle line.13 In general, the agency has granted many petitions for exemptions for installation of immobilization-type devices. Manufacturers have provided the agency with a substantial amount of information attesting to the reduction of thefts for vehicle lines resulting from the installation of immobilization devices as standard equipment on those lines.

    12 77 FR 20486 (April 4, 2012).

    13 76 FR 41558 (July 14, 2011).

    B. U.S. Canada Regulatory Cooperation Council

    On February 4, 2011, the U.S. and the Canadian governments created a United States-Canada Regulatory Cooperation Council (RCC), composed of senior regulatory, trade and foreign affairs officials from both governments. In recognition of the two countries' $1 trillion annual trade and investment relationship, the RCC is working together to promote economic growth, job creation and benefits to consumers and businesses through increased regulatory transparency and coordination.14

    14https://www.whitehouse.gov/sites/default/files/omb/oira/irc/us-canada-rcc-joint-forward-plan.pdf (last accessed February 10, 2016).

    On December 7, 2011, the RCC established an initial Joint Action Plan that identified 29 initiatives where the U.S. and Canada will seek greater alignment in their regulatory approaches. The Joint Action Plan highlights the areas and initiatives which were identified for initial focus. These areas include agriculture and food, transportation, health and personal care products and workplace chemicals, environment and cross-sectoral issues. One of the topics for regulatory cooperation identified in the transportation area is to pursue greater harmonization of existing motor vehicle standards. Theft prevention is one of the harmonization opportunities identified by the Motor Vehicles Working Group.

    C. Canadian Motor Vehicle Safety Standard No. 114

    In addition to the theft and rollaway prevention requirements included in the U.S. version of the standard, CMVSS No. 114 requires the installation of an immobilization system for all new passenger vehicles, MPVs and trucks certified to the standard with a gross vehicle weight rating (GVWR) of 4,536 kg or less, with some exceptions. CMVSS No. 114 contains four different sets of requirements for immobilizers. The four sets of requirements are National Standard of Canada CAN/ULC-S338-98, Automobile Theft Deterrent Equipment and Systems: Electronic Immobilization (May 1998); United Nations Economic Commission for Europe (UN/ECE) Regulation No. 97 (ECE R97) in effect August 8, 2007, Uniform Provisions Concerning Approval of Vehicle Alarm System (VAS) and Motor Vehicles with Regard to Their Alarm System (AS); UN/ECE Regulation No. 116 (ECE R116), Uniform Technical Prescriptions Concerning the Protection of Motor Vehicles Against Unauthorized Use in effect on February 10, 2009; and a set of requirements derived from the CAN/ULC 338-98 standard and ECE R97 developed by Transport Canada to increase manufacturer design flexibility (in effect March 30, 2011). Vehicles certified to CMVSS No. 114 must be equipped with an immobilizer meeting one of these four sets of requirements. Used motor vehicles imported into Canada must also be equipped with immobilizers meeting CMVSS No. 114. This requirement makes it more difficult to import into Canada motor vehicles manufactured in the U.S. that are not equipped with an immobilizer meeting CMVSS No. 114. In such cases, an immobilizer that complies with CMVSS No. 114, usually an aftermarket device, must be added to the vehicle before it can be imported into Canada.

    CAN/ULC-S338-98 contains design specifications, activation and deactivation requirements, durability tests, and tests to assess the resistance to physical attack for immobilizers. ECE R97 and ECE R116 contain design specifications, activation and deactivation requirements, durability tests, and tests to assess the resistance to physical attack for immobilizers similar to those contained in CAN/ULC-S338-98. The fourth set of requirements for immobilizers in CMVSS No. 114 contains design specifications, activation and deactivation requirements, and requirements testing the ability of the immobilizer to resist deactivation by physical attack derived from the other standards. The fourth set of requirements, however, does not include the environmental tests and durability requirements that are included in CAN/ULC-S338-98, ECE R97 and ECE R116.

    In adopting the fourth set of performance requirements for immobilizers contained in CMVSS No. 114, Transport Canada stated that some of the environmental and durability requirements for immobilizers contained in CAN/ULC-S338-98, ECE R97, and ECE R116 were developed for aftermarket immobilizers and should not be applied to immobilizers that are installed as original equipment on a vehicle.15 Transport Canada also stated that those three standards contained requirements specific to particular immobilizer designs, had the potential to restrict the design of immobilizers, and had the potential to prevent the introduction of new and emerging technologies such as keyless vehicle technologies, key-replacement technologies and remote starting systems. Transport Canada stated that for these reasons it established a set of performance requirements without the environmental and durability requirements contained in CAN/ULC-S338-98, ECE R97, and ECE R116.

    15 See SOR/2007-246 November, 2007 “Regulations Amending the Motor Vehicle Safety Regulations (Theft Protection and Rollaway Prevention—Standard 114)” 2007-11-14 Canada Gazette Part II, Vol. 141, No. 23.

    III. Proposed Rule

    The agency proposed to include performance criteria for immobilizers in part 543 so that manufacturers may more easily apply for exemptions from the parts marking requirements for vehicles lines with immobilizers conforming to CMVSS No. 114. NHTSA proposed to add performance criteria to part 543 to make our theft prevention standards more in line with those of Canada. In order to be eligible for an exemption under the proposal, manufacturers would be required to state and demonstrate that the immobilizer device they are installing in the vehicle line meets the proposed performance criteria and is durable and reliable.

    The agency believes that adding performance criteria from CMVSS No. 114 to part 543 is the simplest way to make our anti-theft regulations more in line with that standard and to reduce the burden to manufacturers, who are already installing immobilizers in compliance with that standard, of applying for an exemption from the parts marking requirements. The agency could not add performance requirements for immobilizers as part of Federal Motor Vehicle Safety Standard (FMVSS) No. 114, Theft Protection and Rollaway Prevention, since doing so would require a determination that the additional requirements would be consistent with the National Traffic and Motor Vehicle Safety Act (Motor Vehicle Safety Act).16 Further, the agency is unable to issue a theft prevention standard under the Theft Act to require the installation of immobilizers because that Act limits the agency's standard setting authority to issuing standards that require parts marking.17 Manufacturers are allowed to install immobilizers in lieu of parts marking, but under an exemption from the theft standard, not as a compliance alternative included in the theft standard.

    16 49 U.S.C. 30101 et seq.

    17See 49 U.S.C. 33101(11) (defining “vehicle theft prevention standard” as a performance standard for identifying major vehicle parts by affixing numbers or symbols to those parts).

    Prior to this final rule, NHTSA had not formally or informally adopted any technical performance criteria for anti-theft devices. While NHTSA has granted many petitions for exemption from the parts marking requirements for vehicle lines equipped with an immobilizer anti-theft device, a manufacturer is not required to install an immobilizer in order to gain an exemption. The agency proposed to retain the current exemption process so that manufacturers would still be able to gain an exemption for installing anti-theft devices that do not conform to the proposed performance criteria for immobilizers. The number of exemptions available to manufacturers would not increase as a result of the proposal. Thus, manufacturers will continue to be eligible for an exemption from the parts marking requirements for only one vehicle line per model year.

    NHTSA proposed only the fourth set of performance criteria for immobilizers contained in CMVSS No. 114 for inclusion in part 543. The agency proposed to adopt only this one set of performance criteria because of the factors articulated by Transport Canada discussed in Section C above. Furthermore, the agency proposed adopting only this one set of performance criteria as the simplest way to harmonize anti-theft regulations between the U.S. and Canada. In the proposed rule, NHTSA anticipated the possibility that vehicles equipped with immobilizers meeting the performance criteria in CAN/ULC-S338-98, ECE R97, or ECE R116 would still be able to obtain an exemption from the theft prevention standard via a petition filed under the current exemption procedures. The agency sought comment on whether it should consider including all four performance criteria.

    In its proposal, NHTSA tentatively concluded that immobilizers meeting the proposed performance criteria are likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts marking requirements in part 541. The agency has granted numerous exemptions from the theft prevention standard for vehicle lines equipped with immobilizers based on data submitted by manufacturers indicating that immobilizers were as effective in reducing and deterring motor vehicle theft as compliance with that standard. Several studies have also indicated that immobilizers designed to meet technical performance criteria are effective in reducing and deterring motor vehicle theft. Studies in Australia and Canada on the effectiveness of immobilization systems (which meet CAN/ULC-S338-98 or ECE R97 and ECE R116) have shown reduced incidence of theft compared to vehicles that were not equipped with immobilizers.18

    18See Principles for Compulsory Immobilizer Schemes, prepared for the National Motor Vehicle Theft Reduction Council by MM Starrs Pty Ltd., ISBN 1 876704 17 9, Melbourne, Australia, October 2002; Matthew J Miceli “A Report on Fatalities and Injuries as a Result of Stolen Motor Vehicles (1999-2001),” prepared for The National Committee to Reduce Auto Theft Project #6116 and Transport Canada, December 10, 2002.

    For these reasons, the agency concluded that establishing performance criteria for immobilizers as a means of getting an exemption from the theft prevention standard is consistent with 49 U.S.C. 33106 of the Theft Act. That section requires the agency to determine that an anti-theft device is likely to be as effective in reducing and deterring motor vehicle theft as compliance with the parts marking requirements in part 541 in order to grant an exemption from those requirements.

    The proposed performance criteria for immobilizers included specifications for when the immobilizer should arm after the disarming device is removed from the vehicle. The performance criteria state that, when armed, the immobilizer should prevent the vehicle from moving more than three meters under its own power by inhibiting the operation of at least one of the vehicle's electronic control units (ECU). Further, the performance criteria state that, when armed, the immobilizer should not disable the vehicle's brake system. During the disarming process, the immobilizer should send a code to the inhibited ECU to allow the vehicle to move under its own power. The immobilizer should be configured so that disrupting the device's normal operating voltage cannot disarm the immobilizer. Additionally, the immobilizer must have a minimum capacity for 50,000 code variants and shall not be capable of processing more than 5,000 codes within 24 hours unless the immobilizer uses rolling or encrypted codes. The performance criteria state that it shall not be possible to replace the immobilizer without the use of software. In order to satisfy the performance criteria, the immobilizer in a vehicle must be designed so that it is not possible to disarm it using common tools within five minutes.

    In order to promote understanding of the new terms used in the regulatory text, the agency also proposed definitions for “immobilizer” and “accessory mode.”

    The agency plans on ensuring that immobilizer devices that manufacturers are installing to obtain an exemption conform with the proposed performance criteria by requiring manufacturers to state that they have certified the immobilizer installed on the vehicle to the performance criteria of CMVSS No. 114. Manufacturers must be ready to provide Transport Canada with evidence that the immobilizer complies with CMVSS No. 114, along with all other applicable Canadian Standards, prior to certifying the vehicle under the Canadian Motor Vehicle Safety Act.19 NHTSA believes that it can rely on the information that manufacturers have kept to provide to Transport Canada regarding their certification to CMVSS No. 114 to ensure that immobilizers manufacturers install in order to obtain an exemption conform to the proposed performance criteria. The NPRM proposed that manufacturers submit the documentation provided to Transport Canada regarding their certification to CMVSS No. 114 to NHTSA as part of a manufacturer's petition for exemption. We do not believe that requiring this information as part of the petition would place a burden on manufacturers because they are already compiling this information to provide to Transport Canada, if requested, when certifying their vehicles under the Canadian Motor Vehicle Safety Act.

    19 Motor Vehicle Safety Act. R.S.C., ch. 16 section 5(1)(e) (1993) (Can.). The Canadian Motor Vehicle Safety Act requires a manufacturer to certify that its vehicles comply with all applicable Canadian Motor Vehicle Safety Standards before the vehicles can be sold in Canada.

    The proposed regulatory text did not include a requirement that manufacturers provide a detailed description of the immobilizer device as part of the petition because we believe that the documentation that manufacturers are keeping to provide to Transport Canada, and that they would be required to provide to NHTSA, describes the immobilizer device in sufficient detail for the agency to be able to determine whether the device satisfies the performance criteria.

    The proposed performance criteria did not include specifications that address the durability and reliability of immobilizers because the agency was concerned about the limitations such specifications could pose to immobilizer designs. Part 543 currently requires manufacturers to explain how the design of their immobilizer device ensures that it is durable and reliable in order to be eligible for an exemption.20 Because the agency believes that it is possible for the durability and reliability of an immobilizer to impact its effectiveness, we tentatively decided to retain this criterion of eligibility as part of the proposed performance criteria. We tentatively concluded that requiring manufacturers to submit a statement regarding the durability and reliability of the immobilizer is the best way to ensure that immobilizers are durable and reliable without impacting the ability of manufacturers to create new immobilizer systems. We believe manufacturers will submit statements similar to the ones they are currently submitting as part of their exemption applications to demonstrate that their immobilizers are durable and reliable.

    20 49 CFR 543.6(a)(3)(v).

    The agency stated it believes the proposed performance criteria are consistent with the following anti-theft device attributes that are currently contained in part 543:

    • The specification in the proposed performance criteria that the immobilizer arm after the disarming device is removed from the vehicle will facilitate activation of the immobilizer by the driver and prevent unauthorized persons who have entered the vehicle by means other than a key from operating the vehicle.21

    21See 49 CFR 543.6(a)(3)(i), (iv) (stating that the application for exemption must include an explanation of how the anti-theft device facilitates activation by the driver and prevents unauthorized persons who have entered the vehicle by means other than a key from operating the vehicle).

    • The specification in the proposed performance criteria that the immobilizer have certain code processing capabilities and be resistant to physical attack will ensure that the immobilizer is designed to prevent defeat or circumvention by persons entering the vehicle by means other than a key.22

    22See 49 CFR 543.6(a)(3)(iii)(iv) (stating that the application for exemption must include an explanation of how the anti-theft device prevents defeat or circumvention of the device by an someone without the vehicle's key and prevents unauthorized persons who have entered the vehicle by means other than a key from operating the vehicle).

    The proposed performance criteria correspond to the aspects of performance of immobilizer devices that manufacturers now qualitatively describe in their exemption petitions. Manufacturers are currently demonstrating the effectiveness of immobilizers by describing the testing the immobilizer has been subjected to, how the immobilizer is activated, how the immobilizer interacts with the key to allow the vehicle to start and the encryption of electronic communications between the key and the immobilizer. These characteristics correspond to performance criteria in the proposal for how the immobilizer must arm, preventing the vehicle from moving under its own power, how the immobilizer must disarm to allow the driver to start the vehicle, the minimum number of code variants that the immobilizer is able to process, and the immobilizer's resistance to manipulation and physical attack. The proposed performance criteria simplify the process for applying for an exemption because manufacturers would no longer need to describe how the immobilizer achieves these aspects of performance. Instead, manufacturers would only need to state and demonstrate that their immobilizer device conforms to the performance criteria, and is durable and reliable.

    In order to allow manufacturers to more easily apply for an exemption from the theft prevention standard and to reduce the burden to the agency in processing exemption petitions we tentatively decided that we will notify manufacturers of decisions to grant or deny exemption petitions by notifying them of the agency's decision in writing. As proposed, we would not publish notices of our decisions to grant or deny exemption petitions from the theft prevention standard based on the manufacturer having satisfied the performance criteria in the Federal Register. NHTSA would continue to inform the public and law enforcement that a particular vehicle line has an exemption based on satisfaction of the performance criteria by updating the list of exempt vehicle lines in appendix A-I to part 541.

    IV. Overview of Comments

    NHTSA received two comments on the proposed rule. Commenters were generally supportive of the proposal because it allows for improved harmonization with Canada, but expressed concerns about the documentation required to obtain an exemption and allowing for more compliance options similar to Transport Canada's CMVSS No. 114.

    The Alliance of Automobile Manufacturers (Alliance) expressed a procedural concern with the information manufacturers must provide to NHTSA in order to obtain an exemption under the proposed regulation. Specifically, the Alliance noted that in order to comply with Canadian law, manufacturers must certify as complying with all applicable CMVSSs—but manufacturers do not routinely provide compliance data to Transport Canada to prove compliance. Because of this, the Alliance suggested that manufacturers only be required to submit a statement that the immobilizer meets the performance requirements noted in the proposal. The Alliance suggested that this statement would eliminate the proposal's requirement to submit the same documentation that demonstrates compliance with CMVSS No. 114.

    Toyota Motor North America, Inc. (Toyota) submitted a comment stating that it agrees with the comments submitted by the Alliance and that it believes immobilizers conforming to any of the four enumerated standards in CMVSS No. 114 should be acceptable to obtain an exemption under part 543. Toyota suggests that allowing manufacturers to obtain an exemption by complying with any of the four accepted standards would allow for greater harmonization between the United States and Canada, as well as increase manufacturer flexibility.

    V. Response to Comments and Differences Between the Final Rule and NPRM A. Manufacturers Seeking an Exemption Via Compliance With Performance Criteria Will Be Required To Submit Data Demonstrating Compliance With Standards

    Transport Canada has a certification process that is similar to NHTSA's “self-certification process.” Under Canada's Motor Vehicle Safety Act, the responsibility rests with the vehicle manufacturer or importer to certify that all new vehicles offered for sale in Canada comply with all applicable safety standards in effect on the date of manufacture. Manufacturers or importers certify this by displaying the national safety mark. As a prerequisite to obtaining permission to use the national safety mark, a manufacturer must maintain records demonstrating completion of certification testing. While certification test documentation may not be requested by Transport Canada for every new or imported vehicle in Canada, the Canadian Motor Vehicle Safety Act requires such records be available should Transport Canada request them.

    NHTSA believes that providing only a statement of compliance with CMVSS No. 114 is insufficient to justify an exemption from the theft prevention standard. Moreover, the data NHTSA will require is data manufacturers should be keeping in order to facilitate any compliance verification requests from Transport Canada.

    The agency currently receives petitions for exemptions from manufacturers that present justification for receiving an exemption. This application includes an explanation of how the anti-theft device will promote activation, attract attention to the efforts of unauthorized persons to enter or operate a vehicle by means other than a key, prevent defeat or circumvention of the device by unauthorized persons, prevent operation of the vehicle by unauthorized persons to enter or operate a vehicle by unauthorized entrants, and ensure the reliability and durability of the device. On those grounds, the agency can evaluate the justification and grant or deny the exemption. This rule seeks to streamline the exemption process by using compliance with certain standards in lieu of submitting separate justifications for exemptions under Part 543. Requiring manufacturers to provide the recordkeeping information required by the Transport Canada to demonstrate CMVSS No. 114 compliance, should Transport Canada ask for the data, allows NHTSA to ensure anti-theft devices installed on vehicles meet the same level of performance as would be expected of an anti-theft device requested through the prior exemption process. Therefore, the agency is finalizing the proposed requirement that manufacturers submit compliance data kept for Transport Canada compliance in order to prove compliance with CMVSS No. 114 standards.

    B. Manufacturers Seeking an Exemption Via Compliance With Performance Criteria May Comply With Any of the Four Criteria in CMVSS No. 114

    We sought comments on whether adding the standards in CAN/ULC-S338-98,23 ECE R97, and ECE R116 to the agency's accepted performance criteria would better accomplish the agency's goal of harmonizing the process for obtaining an exemption with the Canadian theft prevention standard. After reconsideration of the proposal and reviewing public comments, NHTSA has decided to accept anti-theft devices compliant with any of the four performance criteria allowed under CMVSS No. 114 for exemptions under part 543. Manufacturers will be required to submit statements similar to the ones they are currently submitting as part of their exemption applications to demonstrate that immobilizers certified to any of the four standards are durable and reliable. The agency proposed what it believed to be the simplest method of harmonization with Canada; however, after evaluating stakeholder response to this issue, we believe that finalizing all four performance criteria will simplify compliance and promote harmonization between the United States and Canada.

    23 NHTSA was notified that ULC posted a withdrawal for CAN/ULC-S338-98 on December 22, 2015. The comment period for this withdrawal closed on January 20, 2016. See: https://www.scc.ca/en/standards/work-programs/ulc/standard-for-automobile-theft-deterrent-equipment-and-systems-electronic-immobilization (last accessed February 10, 2016).

    We proposed Transport Canada's fourth performance criteria because Transport Canada determined that the three other standards were developed for aftermarket immobilizers and had the potential to restrict the design of immobilizers. Finalizing all four performance criteria will provide additional flexibility by allowing OEMs and aftermarket manufacturers to elect the performance criteria most appropriate for their device. It will also improve harmonization with the United Nations Economic Commission for Europe (ECE) immobilizer performance criteria by allowing manufacturers the option of complying with one of two ECE standards and receiving an exemption from the theft prevention standard.

    Further, NHTSA believes allowing all four performance standards will be as effective in reducing and deterring motor vehicle theft as compliance with the parts marking requirements in part 541. Since 2007, when Transport Canada began requiring OEMs to install immobilizers meeting one of the four performance criteria for most vehicles, theft in Canada has decreased more than 50 percent.24 As discussed in the proposal, the agency believes that based on the effectiveness of immobilizers certified to any of the performance criteria in Canada, the regulations finalized today are consistent with the Theft Act.

    24 See “actual incidents” of “total theft of motor vehicle” at http://www5.statcan.gc.ca/cansim/a01?lang=eng (last accessed February 10, 2016).

    The agency has modified the regulatory text to reflect the inclusion of all four performance criteria. As a result of doing so, NHTSA has moved the originally proposed criteria from C.R.C, c. 1038.114, Theft Protection and Rollaway Prevention (in effect March 30, 2011) to appendix A of part 543.

    VI. Costs, Benefits, and Compliance Date

    This rule amends part 543 to add performance criteria for immobilizers that are contained in CMVSS No. 114. Because the agency is retaining the current exemption process as a means of gaining an exemption from the theft prevention standard, the addition of performance criteria to part 543 would result in no costs to manufacturers. Manufacturers would not be required to make any changes to products in order to retain eligibility for an exemption.

    The agency cannot quantify the benefits of this rulemaking. The agency does, however, expect some benefits to accrue from making the exemption process in part 543 more closely harmonized with CMVSS No. 114. Additionally, since two of the accepted performance criteria added by this rule are ECE standards, manufacturers could potentially pay less for immobilizer devices if they are able to order higher volumes of parts due to harmonization with Canadian and ECE standards.

    Adding the performance criteria would allow manufacturers that are installing immobilizers as standard equipment for a line of motor vehicles in compliance with CMVSS No. 114 to more easily gain an exemption from the parts marking requirements. The agency believes this would reduce the cost to manufacturers of applying for an exemption from the parts marking requirements. Adding performance criteria to part 543 would also result in a reduction in vehicle theft in cases for which the rule improves the effectiveness of the anti-theft devices chosen by manufacturers.

    If the rule encourages more manufacturers to install immobilizers meeting CMVSS No. 114 on vehicles sold in the United States, it could result in cost savings to consumers seeking to import used vehicles into Canada. Importing used vehicles that already comply with CMVSS No. 114 into Canada saves consumers from having to pay to have an aftermarket immobilizer installed in the vehicle.

    The compliance date will be 60 days after the date of issuance of the publication of this final rule.

    VIII. Regulatory Notices and Analyses Executive Order 12866, Executive Order 13563, and DOT Regulatory Policies and Procedures

    NHTSA has considered the impact of this rulemaking action under Executive Order 12866, Executive Order 13563, and the Department of Transportation's regulatory policies and procedures. This rulemaking document was not reviewed by the Office of Management and Budget under E.O. 12866, “Regulatory Planning and Review.” It is not considered to be significant under E.O. 12866 or the Department's regulatory policies and procedures.

    This rule would amend part 543 to add performance criteria for immobilizers that are contained in CMVSS No. 114 to allow manufacturers who are installing immobilizers in compliance with that standard to more easily obtain an exemption from the theft prevention standard.

    The agency concludes that the impacts of the changes would be so minimal that preparation of a full regulatory evaluation is not required. This rule would not result in any costs to manufacturers because the current exemption process would be left in place. Manufacturers would not be required to make any changes to current vehicles to retain eligibility for an exemption. It is also possible that this rule would result in a reduction in motor vehicle thefts if immobilizers meeting the performance criteria are more effective than current designs.

    Executive Order 13609: Promoting International Regulatory Cooperation

    The policy statement in section 1 of Executive Order 13609 provides, in part:

    The regulatory approaches taken by foreign governments may differ from those taken by U.S. regulatory agencies to address similar issues. In some cases, the differences between the regulatory approaches of U.S. agencies and those of their foreign counterparts might not be necessary and might impair the ability of American businesses to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.

    NHTSA is issuing this rule pursuant to a regulatory cooperation agreement between the United States and Canada. This rule would more closely harmonize vehicle theft regulations in the United States with those in Canada.

    National Environmental Policy Act

    We have reviewed this rule for the purposes of the National Environmental Policy Act and determined that it would not have a significant impact on the quality of the human environment.

    Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). The Small Business Administration's regulations at 13 CFR part 121 define a small business, in part, as a business entity “which operates primarily within the United States.” 13 CFR 121.105(a). No regulatory flexibility analysis is required if the head of an agency certifies the rule will not have a significant economic impact on a substantial number of small entities.

    NHTSA has considered the effects of the rule under the Regulatory Flexibility Act and certifies that this rule would not have a significant economic impact on a substantial number of small entities. This rule amends part 543 to add performance criteria for immobilizers that are contained in CMVSS No. 114 to allow manufacturers who are installing immobilizers in compliance with that standard to more easily obtain an exemption from the theft prevention standard. This rule would not significantly affect any entities because it would leave in place the current exemption process so that manufacturers would not need to make any changes to products to retain eligibility for an exemption. Accordingly, we do not anticipate that this rule would have a significant economic impact on a substantial number of small entities.

    Executive Order 12988 (Civil Justice Reform)

    With respect to the review of the promulgation of a new regulation, section 3(b) of Executive Order 12988, “Civil Justice Reform” (61 FR 4729; Feb. 7, 1996), requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect; (2) clearly specifies the effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct, while promoting simplification and burden reduction; (4) clearly specifies the retroactive effect, if any; (5) specifies whether administrative proceedings are to be required before parties file suit in court; (6) adequately defines key terms; and (7) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. This document is consistent with that requirement.

    Pursuant to this Order, NHTSA notes as follows. There is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceedings before they may file suit in court. NHTSA has considered whether this rulemaking would have any retroactive effect. This rule does not have any retroactive effect.

    Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires Federal agencies to prepare a written assessment of the costs, benefits, and other effects of a proposed or final rule that includes a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of more than $100 million in any one year (adjusted for inflation with base year of 1995).

    Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires NHTSA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows NHTSA to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted.

    This rule is not anticipated to result in the expenditure by state, local, or tribal governments, in the aggregate, or by the private sector in excess of $100 million annually. The cost impact of this rule is expected to be $0. Therefore, the agency has not prepared an economic assessment pursuant to the Unfunded Mandate Reform Act.

    Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct, sponsor, or require through regulations. This rule would decrease the materials that a manufacturer would need to submit to the agency to obtain an exemption from the vehicle theft prevention standard in certain instances.

    Agency: National Highway Traffic Safety Administration (NHTSA).

    Title: 49 CFR part 543, Petitions for Exemption from the Vehicle Theft Prevention Standard.

    Type of Request: Revision of a currently approved collection.

    OMB Control Number: 2127-0542.

    Form Number: The collection of this information uses no standard form.

    Requested Expiration Date of Approval: Three years from the date of approval.

    Summary of the Collection of Information: This collection consists of information that motor vehicle manufacturers must submit in support of an application for an exemption from the vehicle theft prevention standard. Manufacturers wishing to apply for an exemption from the parts marking requirement because they have installed immobilizers meeting the performance criteria would be required to submit a statement that the entire line of vehicles is equipped with an immobilizer, as standard equipment, that meets the performance criteria contained in that section, a statement that the immobilizer has been certified to the Canadian theft prevention standard, documentation provided to Transport Canada to demonstrate that the immobilizer was certified to the Canadian theft prevention standard, and a statement that the immobilizer device is durable and reliable. This rule would not change the information that manufacturers would need to submit if seeking an exemption in accordance with the current process used for petitions seeking an exemption based on the installation of immobilizers.

    Description of the Need for the Information and Use of the Information: The information is needed to determine whether a vehicle line is eligible for an exemption from the vehicle theft prevention standard.

    Description of the Likely Respondents (Including Estimated Number, and Frequency of Response to the Collection of Information): Currently, nineteen manufacturers have one or more car lines exempted. We expect that within the three year period covered by this clearance, twelve manufacturers would apply for an exemption per year: Nine under the current process and three under the performance criteria. Based on another analysis of the exemption information NHTSA has received, as well as the comments the agency received, NHTSA has made a minor adjustment to the estimates provided in the NPRM. In comparison to the estimates provided in the NPRM, the agency believes that one more manufacturer will use the new process within the next three years. The agency thinks it is likely that more manufacturers will migrate to the new process over time, however, because many manufacturers have product plans covering the next three years that might not happen until the agency renews its collection in three years. NHTSA anticipates reevaluating this assessment during its next renewal of this collection.

    Estimate of the Total Annual Reporting and Recordkeeping Burden Resulting from the Collection of Information: We estimate that the burden for applying for an exemption under this rule would be 2300 hours. The burden for applying for an exemption under the current process is estimated to be 226 hours × 9 respondents = 2034 hours. The burden for apply for an exemption under the performance criteria is estimated to be 20 hours × 3 respondents = 60 hours.

    National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) requires NHTSA to evaluate and use existing voluntary consensus standards in its regulatory activities unless doing so would be inconsistent with applicable law (e.g., the statutory provisions regarding NHTSA's vehicle safety authority) or otherwise impractical.

    Voluntary consensus standards are technical standards developed or adopted by voluntary consensus standards bodies. Technical standards are defined by the NTTAA as “performance-based or design-specific technical specification and related management systems practices.” They pertain to “products and processes, such as size, strength, or technical performance of a product, process or material.”

    Examples of organizations generally regarded as voluntary consensus standards bodies include the American Society for Testing and Materials (ASTM), the Society of Automotive Engineers (SAE), and the American National Standards Institute (ANSI). If NHTSA does not use available and potentially applicable voluntary consensus standards, we are required by the Act to provide Congress, through OMB, an explanation of the reasons for not using such standards.

    We are not aware of any technical performance criteria for immobilizers issued by voluntary consensus standards bodies in the United States. For the reasons discussed in this notice, the agency has determined that the simplest way to harmonize part 543 with Canadian theft prevention regulations was to adopt all four performance criteria discussed above.

    Executive Order 13211

    Executive Order 13211 25 applies to any rule that: (1) Is determined to be economically significant as defined under E.O. 12866, and is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) that is designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action. If the regulatory action meets either criterion, we must evaluate the adverse energy effects of the rule and explain why the regulation is preferable to other potentially effective and reasonably feasible alternatives considered by NHTSA.

    25 66 FR 28355 (May 18, 2001).

    This rule amends part 543 to add performance criteria for immobilizers that are contained in CMVSS No. 114 to allow manufacturers who are installing immobilizers in compliance with that standard to more easily obtain an exemption from the theft prevention standard. Therefore, this rule would not have any significant adverse energy effects. Accordingly, this rulemaking action is not designated as a significant energy action.

    Regulation Identifier Number (RIN)

    The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

    List of Subjects in 49 CFR Part 543

    Imports, Motor vehicle safety, Motor vehicles, Reporting and recordkeeping requirements, Tires.

    In consideration of the foregoing, NHTSA amends 49 CFR chapter V as follows.

    PART 543—EXEMPTION FROM VEHICLE THEFT PREVENTION STANDARD 1. The authority citation for part 543 of title 49 is revised to read as follows: Authority:

    49 U.S.C. 322, 33101, 33102, 33103, 33104 and 33105; delegation of authority at 49 CFR 1.95.

    2. Amend § 543.4 by adding, in alphabetical order, definitions for “Accessory mode” and “Immobilizer” in paragraph (b) to read as follows:
    § 543.4 Definitions.

    (b) * * *

    Accessory mode means the ignition switch setting in which certain electrical systems (such as the radio and power windows) can be operated without the operation of the vehicle's propulsion engine.

    Immobilizer means a device that, when activated, is intended to prevent a motor vehicle from being powered by its own propulsion system.

    3. In § 543.5, revise paragraphs (b)(2), (6), and (7) and add paragraphs (b)(8) and (9) to read as follows:
    § 543.5 Petition: General requirements.

    (b) * * *

    (2) Be submitted in three copies to: Administrator, National Highway Traffic Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590.

    (6) Identify whether the exemption is sought under § 543.6 or § 543.7.

    (7) If the exemption is sought under § 543.6, set forth in full the data, views, and arguments of the petitioner supporting the exemption, including the information specified in that section.

    (8) If the exemption is sought under § 543.7, submission of the information required in that section.

    (9) Specify and segregate any part of the information or data submitted that the petitioner requests be withheld from public disclosure in accordance with part 512, Confidential Business Information, of this chapter.

    §§ 543.7 through 543.9 [Redesignated as §§ 543.8 through 543.10]
    4. Redesignate §§ 543.7 through 543.9 as §§ 543.8 through 543.10. 5. Add a new § 543.7 to read as follows:
    § 543.7 Petitions based on performance criteria.

    A petition submitted under this section must include:

    (a) A statement that the entire line of vehicles is equipped with an immobilizer, as standard equipment, that meets one of the following:

    (1) The performance criteria (subsections 8 through 21) of C.R.C, c. 1038.114, Theft Protection and Rollaway Prevention (in effect March 30, 2011), as excerpted in appendix A of this part;

    (2) National Standard of Canada CAN/ULC-S338-98, Automobile Theft Deterrent Equipment and Systems: Electronic Immobilization (May 1998);

    (3) United Nations Economic Commission for Europe (UN/ECE) Regulation No. 97 (ECE R97), Uniform Provisions Concerning Approval of Vehicle Alarm System (VAS) and Motor Vehicles with Regard to Their Alarm System (AS) in effect August 8, 2007; or

    (4) UN/ECE Regulation No. 116 (ECE R116), Uniform Technical Prescriptions Concerning the Protection of Motor Vehicles Against Unauthorized Use in effect on February 10, 2009.

    (b) Compliance documentation kept to demonstrate the basis for certification with the performance criteria specified in paragraph (a) of this section.

    (c) A statement that the immobilizer device is durable and reliable.

    6. Amend newly redesignated § 543.8 by revising paragraph (f) and adding paragraph (g) to read as follows:
    § 543.8 Processing an exemption petition.

    (f) If the petition is sought under § 543.6, NHTSA publishes a notice of its decision to grant or deny an exemption petition in the Federal Register and notifies the petitioner in writing of the agency's decision.

    (g) If the petition is sought under § 543.7, NHTSA notifies the petitioner in writing of the agency's decision to grant or deny an exemption petition.

    7. Newly redesignated § 543.9 is revised to read as follows
    § 543.9 Duration of exemption.

    Each exemption under this part continues in effect unless it is modified or terminated under § 543.10, or the manufacturer ceases production of the exempted line.

    8. Add appendix A to part 543 to read as follows: Appendix A to Part 543—Performance Criteria (Subsections 8 Through 21) of C.R.C, c. 1038.114 (in Effect March 30, 2011)

    In order to be eligible for an exemption under § 543.7(a)(1), the entire vehicle line must be equipped with an immobilizer meeting the following criteria:

    (1) Subject to paragraph (2) of this appendix, an immobilization system shall arm automatically within a period of not more than 1 minute after the disarming device is removed from the vehicle, if the vehicle remains in a mode of operation other than accessory mode or on throughout that period.

    (2) If the disarming device is a keypad or biometric identifier, the immobilization system shall arm automatically within a period of not more than 1 minute after the motors used for the vehicle's propulsion are turned off, if the vehicle remains in a mode of operation other than accessory mode or on throughout that period.

    (3) The immobilization system shall arm automatically not later than 2 minutes after the immobilization system is disarmed, unless:

    (i) Action is taken for starting one or more motors used for the vehicle's propulsion;

    (ii) Disarming requires an action to be taken on the engine start control or electric motor start control, the engine stop control or electric motor stop control, or the ignition switch; or

    (iii) Disarming occurs automatically by the presence of a disarming device and the device is inside the vehicle.

    (4) If armed, the immobilization system shall prevent the vehicle from moving more than 3 meters (9.8 feet) under its own power by inhibiting the operation of at least one electronic control unit and shall not have any impact on the vehicle's brake system except that it may prevent regenerative braking and the release of the parking brake.

    (5) During the disarming process, a code shall be sent to the inhibited electronic control unit in order to allow the vehicle to move under its own power.

    (6) It shall not be possible to disarm the immobilization system by interrupting its normal operating voltage.

    (7) When the normal starting procedure requires that the disarming device mechanically latch into a receptacle and the device is physically separate from the ignition switch key, one or more motors used for the vehicle's propulsion shall start only after the device is removed from that receptacle.

    (8)(i) The immobilization system shall have a minimum capacity of 50,000 code variants, shall not be disarmed by a code that can disarm all other immobilization systems of the same make and model; and

    (ii) subject to paragraph (9) of this appendix, it shall not have the capacity to process more than 5,000 codes within 24 hours.

    (9) If an immobilization system uses rolling or encrypted codes, it may conform to the following criteria instead of the criteria set out in paragraph (8)(ii) of this appendix:

    (i) The probability of obtaining the correct code within 24 hours shall not exceed 4 per cent; and

    (ii) It shall not be possible to disarm the system by re-transmitting in any sequence the previous 5 codes generated by the system.

    (10) The immobilization system shall be designed so that, when tested as installed in the vehicle neither the replacement of an original immobilization system component with a manufacturer's replacement component nor the addition of a manufacturer's component can be completed without the use of software; and it is not possible for the vehicle to move under its own power for at least 5 minutes after the beginning of the replacement or addition of a component referred to in this paragraph (1).

    (11) The immobilization system's conformity to paragraph (10) of this appendix shall be demonstrated by testing that is carried out without damaging the vehicle.

    (12) Paragraph (10)(i) of this appendix does not apply to the addition of a disarming device that requires the use of another disarming device that is validated by the immobilization system.

    (13) The immobilization system shall be designed so that it can neither be bypassed nor rendered ineffective in a manner that would allow a vehicle to move under its own power, or be disarmed, using one or more of the tools and equipment listed in paragraph (14) of this appendix;

    (i) Within a period of less than 5 minutes, when tested as installed in the vehicle; or

    (ii) Within a period of less than 2.5 minutes, when bench-tested outside the vehicle.

    (14) During a test referred to in paragraph (13) of this appendix, only the following tools or equipment may be used: Scissors, wire strippers, wire cutters and electrical wires, a hammer, a slide hammer, a chisel, a punch, a wrench, a screwdriver, pliers, steel rods and spikes, a hacksaw, a battery operated drill, a battery operated angle grinder; and a battery operated jigsaw.

    Note:

    C.R.C, c. 1038.114, Theft Protection and Rollaway Prevention (in effect March 30, 2011). See: SOR/2011-69 March, 2011 “Regulations Amending the Motor Vehicle Safety Regulations (Theft Prevention and Rollaway Prevention—Standard 114)” 2011-03-30 Canada Gazette Part II, Vol 145, No. 7.

    Issued in Washington, DC, on September 8, 2016, under authority delegated in 49 CFR part 1.95. Mark R. Rosekind, Administrator.
    [FR Doc. 2016-22061 Filed 9-28-16; 8:45 am] BILLING CODE 4910-59-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R4-ES-2015-0137; 4500030113] RIN 1018-AZ95 Endangered and Threatened Wildlife and Plants; Endangered Species Status for Chamaecrista lineata var. keyensis (Big Pine Partridge Pea), Chamaesyce deltoidea ssp. serpyllum (Wedge Spurge), and Linum arenicola (Sand Flax), and Threatened Species Status for Argythamnia blodgettii (Blodgett's Silverbush) AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Final rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), determine endangered species status under the Endangered Species Act of 1973 (Act), as amended, for Chamaecrista lineata var. keyensis (Big Pine partridge pea), Chamaesyce deltoidea ssp. serpyllum (wedge spurge), and Linum arenicola (sand flax), and threatened species status for Argythamnia blodgettii (Blodgett's silverbush), all plant species from south Florida. The rule adds these species to the Federal List of Endangered and Threatened Plants.

    DATES:

    This rule is effective October 31, 2016.

    ADDRESSES:

    This final rule is available on the Internet at http://www.regulations.gov. Comments and materials we received, as well as supporting documentation we used in preparing this rule, are available for public inspection at http://www.regulations.gov. Comments, materials, and documentation that we considered in this rulemaking will be available by appointment, during normal business hours at: U.S. Fish and Wildlife Service, South Florida Ecological Services Field Office, 1339 20th Street, Vero Beach, FL 32960; telephone 772-562-3909; facsimile 772-562-4288.

    FOR FURTHER INFORMATION CONTACT:

    Roxanna Hinzman, U.S. Fish and Wildlife Service, South Florida Ecological Services Field Office, 1339 20th Street, Vero Beach, FL 32960; telephone 772-562-3909; facsimile 772-562-4288. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act, a species may warrant protection through listing if it is endangered or threatened throughout all or a significant portion of its range. Listing a species as an endangered or threatened species can only be completed by issuing a rule.

    The basis for our action. Under the Endangered Species Act, we may determine that a species is an endangered or threatened species based on any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the threats to Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii consist primarily of:

    • Habitat loss and modification through urban and agricultural development, and lack of adequate fire management (Factor A); and

    • The proliferation of nonnative, invasive plants; stochastic events (hurricanes and storm surge); maintenance practices used on roadsides and disturbed sites; and sea level rise (Factor E).

    Existing regulatory mechanisms have not been adequate to reduce or remove these threats (Factor D).

    Peer review and public comment. We sought comments from independent specialists to ensure that our determination is based on scientifically sound data, assumptions, and analyses. We invited these peer reviewers to comment on our listing proposal. We also considered all other comments and information we received during the comment period.

    Previous Federal Actions

    Please refer to the proposed listing rule for Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii (80 FR 58536; September 29, 2015) for a detailed description of previous Federal actions concerning these species.

    Background

    Please refer to the proposed listing rule (80 FR 58536; September 29, 2015) for the complete discussion of each plant's description, habitat, taxonomy, distribution, population estimates, climate, historical range, current range, status, and biology.

    Below, we present only revisions to the discussions in the Background section of the proposed listing rule based on new information from peer review and public comments; as such, not every plant, or every topic for a plant, will be discussed below.

    Chamaecrista lineata var. keyensis (Big Pine partridge pea)

    Species Description

    Please refer to the “Species Description” section of the proposed rule for the complete discussion. We make one minor editorial revision to our description of the plant's fruit, as follows: The fruit is an elongate pod, roughly similar to that of a pea, 33-45 millimeters (mm) (1.3-1.8 inches (in)) long and 4.5-5.0 mm (0.19-0.17 in) wide, with a soft fuzzy texture, which turns gray with age and eventually splits open to release seeds (Irwin and Barneby 1982, p. 757; Small 1933, pp. 662-663).

    Habitat

    Please refer to the “Habitat” section of the proposed rule for the complete discussion. In the Pine Rocklands discussion, we correct the following names of species: Quercus elliottii (running oak) is corrected to Quercus elliottii (running oak), and Psidium longipes (longstalked stopper) is corrected to Psidium longipes (longstalked stopper). We also correct the reference to hardwoods in the pine rocklands of the lower Florida Keys; the hardwoods in the subcanopy include species such as Byrsonima lucida and Mosiera longipes (Bradley 2006, p. 3).

    Current Range, Population Estimates, and Status

    Please refer to the “Current Range, Population Estimates, and Status” section of the proposed rule for the complete discussion. We make minor editorial revisions to the first sentence of the third paragraph of that section, as follows: A second indicator, the frequency with which Chamaecrista lineata var. keyensis occurred in sample plots on Big Pine Key from data collected in 2005, 2007, and 2013, also shows a decline.

    Linum arenicola (sand flax) Habitat

    Please refer to the “Habitat” section of the proposed rule for the complete discussion. Under Roadsides and Other Disturbed Sites, we make minor editorial corrections concerning the plant's persistence on roadsides, as follows: Linum arenicola was at one time more common in pine rocklands in Miami-Dade County, but a lack of periodic fires in most pine rocklands fragments over the last century has pushed this species into the more sunny, artificial environments it prefers (Bradley and Gann 1999, p. 61).

    Please refer to the “Current Range, Population Estimates, and Status” section of the proposed rule for the complete discussion. We make the following corrections to that discussion:

    (1) We correct the description of the current distribution of Linum arenicola in Miami-Dade County, as follows: In Miami-Dade County, the current distribution of Linum arenicola is from just north of SW 184 Street (in the Martinez Pinelands Preserve), south to the intersection of Card Sound Road and the C-102 canal, and west to SW 264 Street and 177 Avenue (Everglades Archery Range at Camp Owaissa Bauer).

    (2) We correct our description of the compilation of all survey work to include a missed citation for Possley (2016, pers. comm.). The corrected sentence reads: Based on a compilation of all survey work through 2016, including Austin (1980), Kernan and Bradley (1996, pp. 1-30), Bradley and Gann (1999, pp. 61-65), Hodges and Bradley (2006, pp. 37-41), Bradley and Saha (2009, p. 10), Bradley (2009, p. 3), Hodges (2010, pp. 4-5, 15), Bradley and van der Heiden (2013, pp. 6-12, 19), Bradley et al. (2015, pp. 28-29), and Possley (2016, pers. comm.), of 26 historical population records for Linum arenicola, 12 populations are extant and 14 are extirpated (see Table 3), a loss of roughly 54 percent of known populations, from the early 1900s to the present.

    (3) Under Miami-Dade County, we correct the location of the seventh population of Linum arenicola, as follows: A seventh small population, located in 2014 at Zoo Miami, (Possley 2016, pers. comm.) is located on county land.

    (4) As a result of the corrections described in (1) through (3), above, we present a revised version of the proposed rule's Table 3 (note: in the following table, USFWS stands for U.S. Fish and Wildlife Service; FWC stands for Florida Fish and Wildlife Conservation Commission; HARB stands for Homestead Air Reserve Base; and SOCSOUTH stands for Special Operations Command South Headquarters):

    Table 3—Summary of the Status and Trends of the Known Occurrences of Linum arenicola Population Ownership Most Recent Population
  • Estimate
  • County Trend
    Extant 12 records Big Pine Key USFWS, FWC, TNC 12, Private 2,676 (2007) 1 Monroe declining. Upper Sugarloaf Key FDOT 13, USFWS 73 (2010) 2 Monroe insufficient data. Lower Sugarloaf Key FDOT 13, USFWS 531 (2010) 2 Monroe stable. Big Torch Key FDOT 13, Private 1 (2010) 2 Monroe declining. Zoo Miami Miami-Dade County 56 (2014) 5 Miami-Dade insufficient data. Martinez Pineland Miami-Dade County 100-200 (2013) 6 Miami-Dade insufficient data. Everglades Archery Range Miami-Dade County 23 (2012) 7 Miami-Dade insufficient data. HAFB 15 1—S of Naizare BLVD DOD 14, Miami-Dade County 24,000 (2013) 7 Miami-Dade stable. SOCSOUTH (HAFB 2—NW side of Bikini BLVD) DOD 14 (leased from Miami-Dade County) 74,000 (2009) 7 10 Miami-Dade stable. HARB (SW 288 St. and 132 Ave) DOD 14 37 (2011) 7 Miami-Dade insufficient data. C-102 Canal SW 248 St. to U.S. 1 SFWMD 11 1,000-10,000 (2013) 7 Miami-Dade insufficient data. L-31E canal, from SW 328 St. to Card Sound Road SFWMD 11 Plants occur along 14 km (8.7 mi) of levee (2013) 7 Miami-Dade insufficient data. Extirpated 14 records Middle Torch Key FWC, FDOT13 3 (2005) 3 Monroe. Ramrod Key FDOT13 110 (1979) 4 Monroe. Park Key FDOT13 unknown (1961) 3 Monroe. Boca Chica DOD14, other (unknown) unknown (1912) 3 Monroe. Camp Jackson unknown unknown (1907) 9 Miami-Dade. Big Hammock Prairie unknown unknown (1911) 9 Miami-Dade. Camp Owaissa Bauer Miami-Dade County 10 (1983) 7 Miami-Dade. Allapatah Drive and Old Cutler Road Private 256 (1996) 8 Miami-Dade. Bauer Drive (Country Ridge Estates) Miami-Dade County 8 (1996) 8 Miami-Dade. Silver Green Cemetery Private 47 (1996) 8 Miami-Dade. Palmetto Bay Village Center Private 12 (1996) 8 Miami-Dade. HAFB (Community Partnership Drive) DOD14, Miami-Dade County unknown (2010) 7 Miami-Dade. Coco Plum Circle (corner of Robles Street & Vista Mar Street) Private 75 (1996) 8 Miami-Dade. George Avery Pineland Preserve Private “small colony” (2002) 7 Miami-Dade. 1 Bradley and Saha 2009, p. 10. 2 Hodges 2010, p. 10. 3 Hodges and Bradley 2006, pp. 39-48. 4 Austin et al. 1980 in FNAI. 5 Possley 2016, pers. comm., p. 11. 6 Possley 2014, pers. comm. 7 Bradley and Van Der Heiden 2013, pp. 6-11. 8 Kernan and Bradley 1996, p. 9. 9 Bradley and Gann 1999, p. 65. 10 Bradley 2009, p. 3. 11 South Florida Water Management District (SFWMD). 12 The Nature Conservancy (TNC). 13 Florida Department of Transportation (FDOT). 14 Department of Defense (DOD). 15 Homestead Air Force Base (HAFB; decommissioned).
    Biology

    Please refer to the “Biology” section of the proposed rule for the complete discussion.

    We revise the Life History and Reproduction discussion to read:

    Life History and Reproduction: Little is known about the life history of Linum arenicola, including pollination biology, seed production, or dispersal. Reproduction is sexual, with new plants generated from seeds. L. arenicola is apparently self-compatible (Harris 2016, pers. comm.). The species produces flowers nearly year round, with maximum flowering from April to September, with a peak around March and April. L. arenicola population demographics or longevity have not been studied (Bradley and Gann, 1999, p. 65; Hodges and Bradley 2006, p. 41; Hodges 2007, p. 2; Harris 2016, pers. comm.).

    Argythamnia blodgettii (Blodgett's silverbush)

    Species Description

    Please refer to the “Species Description” section of the proposed rule for the complete discussion. We clarify the description of the leaves of Argythamnia blodgettii, as follows: The leaves, arranged alternately along the stems, are 1.5 to 4.0 centimeters (cm) (0.6 to 1.6 in) long, have smooth (or rarely toothed) edges, are oval or elliptic in shape, and often are colored a distinctive, metallic bluish green when dried.

    Taxonomy

    Please refer to the “Taxonomy” section of the proposed rule for the complete discussion.

    To the end of the first paragraph, we add the following: Ingram (1952) indicates the distribution of Argythamnia argothamnoides (including Florida material) as Florida and Venezuela. As such, the Service accepts the treatment of Argythamnia blodgettii as a distinct species and therefore does not find a compelling justification to remove the species from consideration for listing under the Act.

    Current Range, Population Estimates, and Status

    Please refer to the “Current Range, Population Estimates, and Status” section of the proposed rule for the complete discussion. We make the following corrections to that discussion:

    (1) We correct the data in Table 4, presented below. (Note: In the following table, USFWS stands for U.S. Fish and Wildlife Service; FWC stands for Florida Fish and Wildlife Conservation Commission; DOD stands for Department of Defense; and ENP stands for Everglades National Park.)

    (2) Because of the corrections presented below for Table 4, the text preceding the table in the proposed rule is now incorrect. Based on the data presented below in Table 4, there are 50 records for Argythamnia blodgettii in Miami-Dade and Monroe Counties. Twenty populations are extant, 15 are extirpated, and the status of 15 is uncertain because they have not been surveyed in 15 years or more.

    Table 4—Summary of the Status and Trends of the Known Occurrences of Argythamnia blodgettii Population Ownership Most recent population
  • estimate
  • County Trend
    Extant 20 records Plantation Key, Snake Creek Hammock FWC 101-1,000 (2005) 2 Monroe Insufficient data. Lower Matecumbe Key—Klopp Tract FDEP 6 11-100 (2000) 2 Monroe Insufficient data. Lignumvitae Key FDEP 6 101-1,000 (2005) 2 Monroe Insufficient data. Big Munson Island Private (Boy Scouts of America) 1,001-10,000 (2005) 2 Monroe Insufficient data. North Key Largo DOD, FDOT No estimate (2005) 8 Monroe Insufficient data. Key Largo—Dove Creek Hammock FWC, FDOT 11-100 (2005) 2 Monroe Insufficient data. Vaca Key (Marathon)—Blue Heron Hammock FWC, FDOT 11-100 (2005) 2 Monroe Insufficient data. Windley Key—State Park FDEP 6 11-100 (2005) 2 Monroe Insufficient data. Boca Chica KWNAS 7 Runway 25 DOD 1,001-10,000 (2004) 2 Monroe Insufficient data. Boca Chica Key KWNAS 7 Weapons Hammock DOD 200 (2004) 2 Monroe Insufficient data. Big Pine Key USFWS, FWC, private ~2,200 (2005) 2 Monroe Insufficient data. ENP Long Pine Key Deer Hammock area (Pine Block A), Turkey Hammock area (Pine Block B), Pine Block E NPS 5 2,000 (2015) 4 Miami-Dade Insufficient data. Fuch's Hammock Miami-Dade County 12 (2008)  1 Miami-Dade Insufficient data. Owaissa Bauer Addition Miami Dade Parks and Recreation 377 (2014) 9 Miami-Dade Insufficient data. Camp Owaissa Bauer Miami Dade Parks and Recreation 878 (2009) 9 Miami-Dade Insufficient data. Ned Glenn Pineland Preserve Miami Dade Parks and Recreation 8 (2016) 10 Miami-Dade Insufficient data. Camp Choee Private (Girl Scout Council of Tropical Florida) 3 (2005) 3 Miami-Dade Insufficient data. Florida Power and Light Easement adjacent to Ludlam Preserve Private 7 (2015) 9 Miami-Dade Insufficient data. Larry and Penny Thompson Park Miami Dade Parks and Recreation 5,700 (2009) 9 Miami-Dade Insufficient data. Boystown Pineland Private No estimate (2005) 3 Miami-Dade Insufficient data. Uncertain 15 records Crawl Key, Forestiera Hammock Private 10 (1982) 3 Monroe Insufficient data. Long Key State Park FDEP No estimate (1999) 2 Monroe Insufficient data. Stock Island Private No estimate (1981) 2 Monroe Insufficient data. Boot Key Private 11-100 (1998) 2 Monroe Insufficient data. Deering Estate State of Florida 11-100 (1991) 1 Miami-Dade Insufficient data. Castellow Hammock Miami Dade Parks and Recreation 11-100 (1991) 1 Miami-Dade Insufficient data. Pine Ridge Sanctuary Private 2-10 (1992) 1 Miami-Dade Insufficient data. County Ridge Estates Private 11-100 (1999) 1 Miami-Dade Insufficient data. Epmore Drive pineland Private 2-10 (1999) 1 Miami-Dade Insufficient data. Gifford Arboretum Pineland Private 2-10 (1999) 1 Miami-Dade Insufficient data. Ned Glenn Nature Preserve Miami Dade Parks and Recreation 11-100 (1999) 1 Miami-Dade Insufficient data. Natural Forest Community #317 Private 2-10 (1999) 1 Miami-Dade Insufficient data. Old Dixie pineland Private 11-100 (1999) 1 Miami-Dade Insufficient data. Castellow #33 Private 12 (1995)  3 Miami-Dade Insufficient data. Castellow #31 Private 30 -50 (1995) 3 Miami-Dade Insufficient data. Extirpated 15 records Upper Matecumbe Key unknown No estimate (1967)  3 Monroe. Totten Key NPS No estimate (1904) 1 Monroe. Key West City of Key West No estimate (1965) 1 Monroe. SW 184th St. and 83rd Ave. Private 0 (2016) 10 Miami-Dade Insufficient data. Tropical Park Pineland Miami Dade Parks and Recreation 0 (2016) 9 Miami-Dade. Crandon Park—Key Biscayne Miami Dade Parks and Recreation 0 (2008) 9 Miami-Dade. Brickell Hammock unknown Extirpated 1937 1 Miami-Dade. Carribean Park Miami-Dade County Extirpated 1998 1 Miami-Dade. Coconut Grove Miami-Dade County Extirpated 1901 1 Miami-Dade. Coral Gables area unknown Extirpated 1967 1 Miami-Dade. Miller and 72nd Ave unknown Extirpated 1975 1 Miami-Dade. Orchid Jungle Miami-Dade County Extirpated 1930 1 Miami-Dade. Palms Woodlawn Cemetery Private Extirpated 1992 1 Miami-Dade. South of Miami River unknown Extirpated 1913 1 Miami-Dade. Naranja Private No estimate (1974) 3 Miami-Dade. 1 Bradley and Gann 1999, p. 6. 2 Hodges and Bradley 2006, pp. 10-17. 3 FNAI 2011b. 4 Sadle 2015, pers. comm., p. 1. 5 National Park Service (NPS). 6 Florida Department of Environmental Protection (FDEP). 7 Key West Naval Air Station (KWNAS). 8 Henize and Hipes 2005, p. 25. 9 Possley 2016, pers. comm. 10 Lange 2016, pers. comm.
    Summary of Comments and Recommendations

    In the proposed rule published on September 29, 2015 (80 FR 58536), we requested that all interested parties submit written comments on the proposal by November 30, 2015. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. Newspaper notices inviting general public comment were published in the Miami Herald and Key West Citizen. We did not receive any requests for a public hearing. All substantive information provided during the comment period has either been incorporated directly into this final determination or is addressed below.

    Peer Reviewer Comments

    In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from three knowledgeable individuals with scientific expertise that included familiarity with Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii and their habitats, biological needs, and threats. We received responses from all three peer reviewers.

    We reviewed all comments received from the peer reviewers for substantive issues and new information regarding the listing of Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii. The peer reviewers generally concurred with our methods and conclusions, and provided additional information, clarifications, and suggestions to improve this final rule.

    (1) Comment: One peer reviewer and one public commenter provided new information about the status of various populations of Linum arenicola and Argythamnia blodgettii within Miami-Dade County preserves. The peer reviewer suggested that the Service may be overestimating the number of extant populations of A. blodgettii, referring to outdated data for Tropical Park, Martinez Preserve, and Crandon Park. The reviewer also suggested the rule should identify the separate parcels within the Richmond Pinelands complex (i.e., Ram Development Corporation, Martinez Pineland Preserve, Larry and Penny Thompson Park, Zoo Miami, University of Florida, and those owned by the Department of Defense (DOD)).

    Our Response: The Service appreciates the new information. We have updated the tables, and associated text, summarizing the status and trends of the known occurrences of Linum arenicola and Argythamnia blodgettii (Tables 3 and 4, above).

    (2) Comment: Two peer reviewers and one public commenter identified a recent publication by Ramirez-Amezcua and Steinman (2013) that included a treatment of the Argythamnia subgenus Ditaxis in Mexico, stating that the range of A. argothamnoides includes Florida, which may bring into question the validity of A. blodgettii as a valid taxon. One reviewer concluded that after reading the published information on the subject, he did not find compelling information to suggest that Florida A. blodgettii populations are synonymous with Argythamnia spp. outside of Florida. This reviewer also recommended that the Service treat A. blodgettii as a distinct species, endemic to Florida.

    Our Response: The Service has reviewed Ramirez-Amezcua and Steinman (2013) and additional literature relating to the taxonomy of Argythamnia blodgettii. As stated in the “Taxonomy” sections of this rule and the proposed rule, there is a history of changes to the classification of this plant, with many based on studies that do not include samples from across the plant's range, including the recent publication suggesting that Argythamnia blodgettii is synonymous with the wider ranging Ditaxis argothamnoides. However, the Service accepts the treatment of A. blodgettii as a distinct species and therefore does not find a compelling justification to remove the species from consideration for listing under the Act.

    (3) Comment: One reviewer commented on the need to include information about genetic studies in the document.

    Our Response: No genetic studies of Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, or Argythamnia blodgettii have been conducted.

    (4) Comment: One reviewer disagreed with our statement that there is no regulatory protection for State-listed plants on private lands through Florida Administrative Code (FAC) 5B-40.

    Our Response: The Service apologizes for mischaracterizing the regulatory protections provided through FAC 5B-40. We have corrected this, and describe the protections in detail in this final rule under Factor D. The Inadequacy of Existing Regulatory Mechanisms, below.

    (5) Comment: One reviewer suggested future research in best practices for mowing areas that support Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii.

    Our Response: The Service agrees that the best mowing practices should be investigated to support the species. This is a topic that will be addressed in the recovery planning process.

    (6) Comment: One reviewer provided new information from an ongoing study about the direct and indirect effects of mosquito insecticide spray on flower visitors and reproductive fitness of Chamaecrista lineata var. keyensis and Linum arenicola in the lower Florida Keys. In addition, two public commenters took issue with the section of the proposed rule that discussed mosquito control pesticide applications as a factor affecting pollinators of Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii. They asserted that the Service made incorrect statements regarding the frequency and amount of mosquito control adulticide treatments in South Florida. These public commenters requested that any mention of pesticide effects on pollinators be removed from this final rule.

    Our Response: The Service appreciates the new information provided by the peer reviewer. Data from ongoing studies in the lower Florida Keys of L. arenicola flower visitor observations show that sites not treated with adulticides had slightly higher fruit set rates than treated sites and pollinator-excluded experimental trials. Several species of small bees were observed frequenting flowers at untreated sites, while visitation was much less frequent at the treated site. Extensive studies in the Florida Keys suggest that broad spectrum insecticides negatively affect nontarget invertebrates, including pollinators (Hennessey 1991; Eliazar and Emmel 1991; Kevan et al. 1997; Salvato 2001; Bargar 2011; Hoang et al. 2011). In addition, pesticides have been shown to drift into adjacent undisturbed habitat that serves as a refuge for native biota (Hennessey 1992; Pierce et al. 2005; Zhong et al. 2010; Bargar 2011). These pesticides can be fatal to nontarget invertebrates that move between urban and forest habitats, altering ecological processes within forest communities (Kevan and Plowright 1989, 1995; Liu and Koptur 2003).

    The Service believes that pesticide spraying may be a factor affecting the reproductive success of Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii. However, we acknowledge that pesticide spraying practices by the Florida Keys Mosquito Control District (FKMCD) at National Key Deer Refuge (NKDR) have changed over the years to reduce pesticide use. Since 2003, expanded larvicide treatments to surrounding islands have significantly reduced adulticide use on Big Pine Key, No Name Key, and the Torch Keys. In addition, the number of aerially applied naled (Dibrom®) treatments allowed on NKDR has been limited since 2008 (FKMCD 2012, pp. 10-11). Zones that include the core habitat used by pine rockland butterflies, and several linear miles of pine rocklands habitat within the Refuge-neighborhood interface, were excluded from truck spray applications (no-spray zones) (Anderson 2012, pers. comm.; Service 2012, p. 32). These exclusions and buffer zones encompass over 95 percent of extant croton distribution on Big Pine Key, and include the majority of known recent and historical Florida leafwing population centers on the island (Salvato 2012, pers. comm.).

    Accordingly, the Service commends the FKMCD for its cooperation in recovering endangered butterflies and plants. Nevertheless, we are proceeding cautiously and have initiated a multi-year research project to further investigate the level of impact pesticides have on these four plants.

    Federal Agency Comments

    (7) Comment: The U.S. Navy expressed interest and a commitment to work proactively with the Service to coordinate on the proposed listing of Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii under the Act. Naval Air Station (NAS) Key West, Florida, is subject to the NAS Key West Integrated Natural Resources Management Plan (INRMP). The Navy noted that the NAS Key West INRMP was acknowledged in the proposed listing rule as providing a conservation benefit to Argythamnia blodgettii habitat. The 2013 INRMP update identified several Monroe County rare species, including Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, and Linum arenicola, that do not occur on NAS Key West properties. The Navy requested that the Service coordinate with it prior to proposing critical habitat on Navy land for any of these species and to fully consider the benefits imparted to these species through INRMP implementation.

    Our Response: We appreciate the U.S. Navy's interest and commitment to work proactively with the Service to conserve Argythamnia blodgettii. In particular, NAS Key West has been proactive in surveying for these species and updating the NAS Key West INRMP to include conservation measures for Argythamnia blodgettii. The Service will coordinate early with NAS Key West regarding any critical habitat proposal for Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, or Argythamnia blodgettii.

    Comments From the State

    We received comments from a peer reviewer who is employed by the Florida Forest Service. Those comments are addressed above under Peer Reviewer Comments in our responses to Comments (3) and (4).

    Public Comments

    (8) Comment: One commenter opposed the proposed listing of the plants on Big Pine Key, Florida. While the commenter generally agreed with the field data for the Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii, the commenter asserted the habitat can no longer sustain these and other federally protected endangered species going forward. The commenter described several alterations, including drainage canals and shallow wells for drainage, that they asserted have permanently damaged the freshwater lens (convex layer of groundwater on top of a layer of denser saltwater) in the Florida Keys. These alterations and sea level rise have permanently changed the natural lens and the amount of freshwater available to these species, particularly in times of drought or following a major hurricane event.

    Our Response: The Service acknowledges the challenges faced by the Florida Keys due to salinization and sea level rise. These factors are discussed at length in this final rule under Factor E. Other Natural or Manmade Factors Affecting Its Continued Existence, below. In addition, the Service agrees habitat loss or degradation is a factor that threatens Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii. However, we disagree that habitat on Big Pine Key can no longer sustain these or other federally protected endangered species going forward. Canals, which occur throughout a large portion of Big Pine Key, have allowed saltwater intrusion into upland areas of the island for decades, threatening upland ecosystems. However, habitat restoration is ongoing across Big Pine Key, particularly within the pine rocklands and rockland hammocks. These restoration efforts are attempting to protect the freshwater lens required by native vegetation; this includes filling or plugging drainage canals to reduce or halt seawater intrusion into upland areas.

    Summary of Changes From the Proposed Rule

    None of the new information we received during the comment period on the proposed rule changes our determinations in this final rule for these four plants. Most of the changes are editorial in nature, and are described above in the Background section of this rule. However, based on comments we received from peer reviewers and the public, we make the following substantive changes:

    • We update the status of several populations of Linum arenicola and Argythamnia blodgettii;

    • We update the discussion of the taxonomy of A. blodgettii to take into consideration a recent publication; and

    • We update our discussion of pesticide applications and pollinators to reflect current application limitations now in effect on Big Pine Key.

    Summary of Factors Affecting the Species

    The Act directs us to determine whether any species is an endangered species or a threatened species because of any one of five factors affecting its continued existence. In this section, we summarize the biological condition of each of the plant species and its resources, and the factors affecting them, to assess the species' overall viability and the risks to that viability.

    Factor A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range

    Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii have experienced substantial destruction, modification, and curtailment of their habitats and ranges. Specific threats to these plants under this factor include habitat loss, fragmentation, and modification caused by development (i.e., conversion to both urban and agricultural land uses) and inadequate fire management. Each of these threats and its specific effects on these plants are discussed in detail below.

    Human Population Growth, Development, and Agricultural Conversion

    The modification and destruction of the habitats that support Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii has been extreme in most areas of Miami-Dade and Monroe Counties, thereby reducing these plants' current ranges and abundance in Florida. The pine rocklands community of south Florida, in which all four plants primarily occur, is critically imperiled locally and globally (FNAI 2012, p. 27). Destruction of pine rocklands and rockland hammocks has occurred since the beginning of the 1900s. Extensive land clearing for human population growth, development, and agriculture in Miami-Dade and Monroe Counties has altered, degraded, or destroyed thousands of acres of these once abundant ecosystems.

    In Miami-Dade County, development and agriculture have reduced pine rocklands habitat by 90 percent in mainland south Florida. Pine rocklands habitat decreased from approximately 74,000 hectares (ha) (183,000 acres (ac)) in the early 1900s, to only 8,140 ha (20,100 ac) in 1996 (Kernan and Bradley 1996, p. 2). The largest remaining intact pine rocklands (approximately 2,313 ha (5,716 ac)) is located on Long Pine Key in Everglades National Park (ENP). Outside of ENP, only about 1 percent of the pine rocklands on the Miami Rock Ridge have escaped clearing, and much of what is left are small remnants scattered throughout the Miami metropolitan area, isolated from other natural areas (Herndon 1998, p. 1).

    Similarly, most of the pine rocklands in the Florida Keys (Monroe County) have been impacted (Hodges and Bradley 2006, p. 6). Pine rocklands historically covered 1,049 ha (2,592 ac) of Big Pine Key (Folk 1991, p. 188), the largest area of pine rocklands in the Florida Keys. Pine rocklands now cover approximately 582 ha (1,438 ac) of the island, a reduction of 56 percent (Bradley and Saha 2009, p. 3). There were no estimates of pine rocklands area on the other islands historically, but each contained much smaller amounts of the habitat than Big Pine Key. Remaining pine rocklands on Cudjoe Key cover 72 ha (178 ac), Little Pine has 53 ha (131 ac), No Name has 56 ha (138 ac), and Sugarloaf has 38 ha (94 ac). The total area of remaining pine rocklands in the Florida Keys is approximately 801 ha (1,979 ac). Currently, about 478 ha (1,181 ac) (82 percent) of the pine rocklands on Big Pine Key, and most of the pine rocklands on these other islands, are protected within the NKDR and properties owned by the Nature Conservancy, the State of Florida, and Monroe County (Bradley and Saha 2009, pp. 3-4). Based on the data presented above, the total remaining acreage of pine rocklands in Miami-Dade and Monroe Counties is now 8,981 ha (22,079 ac) (approximately 8,140 ha (20,100 ac) in Miami-Dade County, and 801 ha (1,979 ac) in the Florida Keys (Monroe County)).

    The marl prairies that also support Linum arenicola have similarly been destroyed by the rapid development of Miami-Dade and Monroe Counties. At least some of the occurrences reported from this habitat may be the result of colonization that occurred after they were artificially dried-out due to local or regional drainage.

    Likewise, habitat modification and destruction from residential and commercial development have severely impacted rockland hammocks, and coastal berm, that support Argythamnia blodgettii. Rockland hammocks were once abundant in Miami-Dade and Monroe Counties but are now considered imperiled locally and globally (FNAI 2010x, pp. 24-26). The tremendous development and agricultural pressures in south Florida have resulted in significant reductions of rockland hammock, which is also susceptible to fire, frost, hurricane damage, and groundwater reduction (Phillips 1940, p. 167; Snyder et al. 1990, pp. 271-272; FNAI 2010, pp. 24-26).

    Pine rocklands, rockland hammock, marl prairie, and coastal habitats on private land remain vulnerable to development, which could lead to the loss of populations of these four species. As noted earlier, all four plants have been impacted by development. The sites of Small's 1907 and 1911 L. arenicola collections in Miami-Dade County are now agricultural fields (Kernan and Bradley 1996, p. 4). A pine rocklands site that supported L. arenicola on Vistalmar Street in Coral Gables (Miami-Dade County) was cleared and developed in 2005, as part of the growing the Cocoplum housing development. A second pine rocklands site that supported L. arenicola, located on private land on Old Cutler Road, was developed into the Palmetto Bay Village Center. L. arenicola has not been observed at either site since they were developed. A former marl prairie site supporting a sizable population of L. arenicola near Old Cutler Road and Allapatah Drive (SW 112 Ave) in Miami-Dade County was extirpated when the site was developed in the 1990s (Bradley and van der Heiden 2013, pp. 6-12, 19). The Boca Chica Key population of L. arenicola was also likely lost due to development (Hodges and Bradley 2006, p. 48).

    Bradley and Gann (1999, p. 6) list 12 populations of Argythamnia blodgettii in Miami-Dade County that were lost when the site that supported them was developed. An A. blodgettii population on Key West was likely lost due to the near complete urbanization of the island (Hodges and Bradley 2006, p. 43). Any development related to the Boy Scout camp on Big Munson Island is a potential threat to the largest population A. blodgettii.

    The largest Linum arenicola population in Miami-Dade County is located on property owned by the Miami-Dade County Homeless Trust. U.S. Special Operations Command South Headquarters (SOCSOUTH), a unified command of all four services of DOD, has entered into a 50-year agreement with Miami-Dade County to lease this 90-ac (36.4-ha) area, where they are building a permanent headquarters on approximately 28 ac (11.3 ha) (DOD 2009, p. 1). As stated above, the population of L. arenicola is spread across the site and was estimated at 74,000 plants in 2009 (Bradley 2009, p. 3). In consultation with the Service, the DOD developed a plan that avoided the majority of the population with accompanying protection and management of approximately 57,725 individuals of sand flax (about 78 percent of the estimated onsite population) (Service 2011, p. 13). The plan will manage 5.95 ha (14.7 ac) of habitat, though most of it is scraped, and only a small portion has a pine canopy (Van der Heiden and Johnson 2013, p. 2). An additional 1.3 ha (3.2 ac) is being managed and supports 13,184 individuals of sand flax (about 18 percent of the estimated onsite population) (Service 2011, p. 13).

    Currently there are plans to develop a 55-ha (137-ac) privately-owned portion of the largest remaining area of pine rocklands habitat in Miami-Dade County, the Richmond pine rocklands, with a shopping center and residential construction (RAM 2014, p. 2). Bradley and Gann (1999, p. 4) called the 345-ha (853-ac) Richmond pine rocklands, “the largest and most important area of pine rockland in Miami-Dade County outside of Everglades National Park.” Populations of Argythamnia blodgettii and Linum arenicola, along with numerous federally listed species, occur in habitat adjacent to the area slated for development. The Miami-Dade County Department of Regulatory and Economic Resources (RER) has completed a management plan for county-owned portions of the Richmond pine rocklands (Martinez Pineland Preserve, Larry and Penny Thompson Park) under a grant from the Service and is leading the restoration and management of these areas (Bradley and Gann 1999, p. 4). The developer has proposed to enter into a habitat conservation plan in conjunction with their plans to develop their portion of the site and was required by Miami-Dade County Natural Forest Community (NFC) regulations to set aside and manage 15 ha (39 ac) of pine rocklands and 2 ha (4 ac) of rockland hammock. A second project that would result in the loss of pine rocklands habitat is also proposed for the Richmond pine rocklands. It includes expanding the Miami Zoo complex to develop an amusement park and large retail mall.

    Approximately 25 percent of extant Linum arenicola occurrences (3 of 12 sites), and 40 percent of extant Argythamnia blodgettii occurrences (14 of 35 sites), are located on private land; no extant populations of Chamaecrista lineata var. keyensis or Chamaesyce deltoidea ssp. serpyllum are located entirely on private land. It is possible that the plants on private lands will be lost from most of these sites in the future with increased pressure from development and the other threats described below.

    Argythamnia blodgettii is the only one of the four plant species that occurs in ENP, where a population of over 2,000 plants is stable, and prescribed fire and other management activities that benefit A. blodgettii are conducted on a regular basis.

    Most pine rocklands and rockland hammock habitat is now limited to public conservation lands, where future development and habitat alteration are less likely than on private lands. However, public lands could be sold off (or leased) in the future and become more likely to be developed or altered in a way that negatively impacts the habitat. For example, at the SOCSOUTH site noted above (leased to DOD by Miami-Dade County), ongoing development of headquarters buildings SOCSOUTH has resulted in the loss of L. arenicola and pine rocklands habitat (Bradley and van der Heiden 2013, pp. 8-10). Construction of visitor facilities such as parking lots, roads, trails, and buildings can result in habitat loss on public lands that are set aside as preserves or parks.

    Roadside populations of Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii are vulnerable to habitat loss and modification stemming from infrastructure projects such as road widening, and installation of underground cable, sewer, and water lines. The Lower Sugarloaf Key population of Linum arenicola was impacted by repaving of the road, which placed asphalt on top of and adjacent to the population (Hodges and Bradley 2006, p. 41).

    Although no entire populations of Chamaecrista lineata var. keyensis or Chamaesyce deltoidea ssp. serpyllum have been extirpated by habitat loss due to development, the size and extent of these populations have been reduced on Big Pine Key (and surrounding islands for Chamaecrista lineata var. keyensis). The total area of pine rocklands on Big Pine Key has decreased by 56 percent from 1955 to the present (Bradley and Saha 2009, p. 3).

    The human population within Miami-Dade County is currently greater than 2.4 million people, and is expected to grow to more than 4 million by 2060, an annual increase of roughly 30,000 people (Zwick and Carr 2006, p. 20). Overall, the human population in Monroe County is expected to increase from 79,589 to more than 92,287 people by 2060 (Zwick and Carr 2006, p. 21). All vacant land in the Florida Keys is projected to be developed by then, including lands currently inaccessible for development, such as islands not attached to the Overseas Highway (U.S. 1) (Zwick and Carr 2006, p. 14). However, in an effort to address the impact of development on federally listed species, Monroe County implemented a habitat conservation plan (HCP) for Big Pine and No Name Keys in 2006. In order to fulfill the HCP's mitigation requirements, the County has been actively acquiring parcels of high-quality pine rocklands, such as The Nature Conservancy's 20-acre Terrestris Tract on Big Pine Key, and managing them for conservation. Although the HCP has helped to limit the impact of development, land development pressure and habitat losses may resume when the HCP expires in 2023. If the HCP is not renewed, residential or commercial development could increase to pre-HCP levels.

    While Miami-Dade and Monroe County both have developed a network of public conservation lands that include pine rocklands, rockland hammocks, marl prairies, and coastal habitats, much of the remaining habitat occurs on private lands as well as publicly owned lands not managed for conservation. Species occurrences and suitable habitat remaining on these lands are threatened by habitat loss and degradation, and threats are expected to accelerate with increased development. Further losses will seriously affect the four plant species' ability to persist in the wild and decrease the possibility of their recovery or recolonization.

    Habitat Fragmentation

    The remaining pine rocklands in the Miami metropolitan area are severely fragmented and isolated from each other by vast areas of development. Remaining pine rockland areas in the Florida Keys are fragmented and are located on small islands separated by ocean. Habitat fragmentation reduces the size of plant populations and increases spatial isolation of remnants. Barrios et al. (2011, p. 1062) investigated the effects of fragmentation on a pine rocklands plant, Angadenia berteroi (pineland golden trumpet), which is recognized by the State of Florida as threatened, and found that abundance and fragment size were positively related. Possley et al. (2008, p. 385) studied the effects of fragment size on species composition in south Florida pine rocklands, and found that plant species richness and fragment size were positively correlated (although some small fragments supported nearly as many species as the largest fragment). Composition of fragmented habitat typically differs from that of intact forests; as isolation and edge effects increase, there is increased abundance of disturbance-adapted species (weedy species; nonnative, invasive species) and lower rates of pollination and propagule dispersal (Laurence and Bierregaard 1997, pp. 347-350; Noss and Csuti 1997, pp. 284-299). The degree to which fragmentation threatens the dispersal abilities of Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii is unknown. In the historical landscape, where pine rocklands occurred within a mosaic of wetlands, water may have acted as a dispersal vector for all pine rocklands seeds. In the current, fragmented landscape, this type of dispersal would no longer be possible for any of the Miami-Dade populations. While additional dispersal vectors may include animals and (in certain locations) mowing equipment, it is likely that fragmentation has effectively reduced these plants' ability to disperse and exchange genetic material.

    While pollination research has not been conducted for Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii, research regarding other species and ecosystems, including Chamaecrista lineata var. keyensis (discussed below), provides valuable information regarding potential effects of fragmentation on these plants. Effects of fragmentation on pollinators may include changes to the pollinator community as a result of limitation of pollinator-required resources (e.g., reduced availability of rendezvous plants, nesting and roosting sites, and nectar/pollen); these changes may include changes to pollinator community composition, species abundance and diversity, and pollinator behavior (Rathcke and Jules 1993, pp. 273-275; Kremen and Ricketts 2000, p. 1227; Harris and Johnson 2004, pp. 30-33). As a result, plants in fragmented habitats may experience lower visitation rates, which in turn may result in reduced seed production of the pollinated plant (which may lead to reduced seedling recruitment), reduced pollen dispersal, increased inbreeding, reduced genetic variability, and ultimately reduced population viability (Rathcke and Jules 1993, p. 275; Goverde et al. 2002, pp. 297-298; Harris and Johnson 2004, pp. 33-34).

    In addition to affecting pollination, fragmentation of natural habitats often alters other ecosystems' functions and disturbance regimes. Fragmentation results in an increased proportion of “edge” habitat, which in turn has a variety of effects, including changes in microclimate and community structure at various distances from the edge (Margules and Pressey 2000, p. 248), altered spatial distribution of fire (greater fire frequency in areas nearer the edge) (Cochrane 2001, pp. 1518-1519), and increased pressure from nonnative, invasive plants and animals that may out-compete or disturb native plant populations. Liu and Koptur (2003, p. 1184) reported decreases in Chamaecrista lineata var. keyensis's seed production in urban areas of Big Pine Key due to increased seed predation, compared with areas away from development.

    The effects of fragmentation on fire go beyond edge effects and include reduced likelihood and extent of fires, and altered behavior and characteristics (e.g., intensity) of those fires that do occur. Habitat fragmentation encourages the suppression of naturally occurring fires, and has prevented fire from moving across the landscape in a natural way, resulting in an increased amount of habitat suffering from these negative impacts. High fragmentation of small habitat patches within an urban matrix discourages the use of prescribed fire as well due to logistical difficulties (see “Fire Management,” below). Forest fragments in urban settings are also subject to increased likelihood of certain types of human-related disturbance, such as the dumping of trash (Chavez and Tynon 2000, p. 405). The many effects of habitat fragmentation may work in concert to threaten the local persistence of a species; when a species' range of occurrence is limited, threats to local persistence increase extinction risk.

    Fire Management

    One of the primary threats to Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii is habitat modification and degradation through inadequate fire management, which includes both the lack of prescribed fire and suppression of natural fires. Where the term “fire-suppressed” is used below, it describes degraded pine rocklands conditions resulting from a lack of adequate fire (natural or prescribed) in the landscape. Historically, frequent (approximately twice per decade), lightning-induced fires were a vital component in maintaining native vegetation and ecosystem functioning within south Florida pine rocklands. A period of just 10 years without fire may result in a marked decrease in the number of herbaceous species due to the effects of shading and litter accumulation (FNAI 2010, p. 63). Exclusion of fire for approximately 25 years will likely result in gradual hammock development over that time period, leaving a system that is very fire-resistant if additional pre-fire management (e.g., mechanical hardwood removal) is not undertaken.

    Today, natural fires are unlikely to occur or are likely to be suppressed in the remaining, highly fragmented pine rocklands habitat. The suppression of natural fires has reduced the size of the areas that burn, and habitat fragmentation has prevented fire from moving across the landscape in a natural way. Without fire, successional climax from pine rocklands to rockland hammock is rapid, and displacement of native species by invasive, nonnative plants often occurs. Understory plants such as Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii are shaded out by hardwoods and nonnatives alike. Shading may also be caused by a fire-suppressed pine canopy that has evaded the natural thinning effects that fire has on seedlings and smaller trees. Whether the dense canopy is composed of pine, hardwoods, nonnatives, or a combination, seed germination and establishment are inhibited in fire-suppressed habitat due to accumulated leaf litter, which also changes soil moisture and nutrient availability (Hiers et al. 2007, pp. 811-812). This alteration to microhabitat can also inhibit seedling establishment as well as negatively influence flower and fruit production (Wendelberger and Maschinski 2009, pp. 849-851), thereby reducing sexual reproduction in fire-adapted species such as Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, L. arenicola, and A. blodgettii (Geiger 2002, pp. 78-79, 81-83).

    After an extended period of inadequate fire management in pine rocklands, it becomes necessary to control invading native hardwoods mechanically, as excess growth of native hardwoods would result in a hot fire, which can kill mature pines. Mechanical treatments cannot entirely replace fire because pine trees, understory shrubs, grasses, and herbs all contribute to an ever-increasing layer of leaf litter, covering herbs and preventing germination, as discussed above. Leaf litter will continue to accumulate even if hardwoods are removed mechanically. In addition, the ashes left by fires provide important post-fire nutrient cycling, which is not provided via mechanical removal.

    Federal (Service, NPS, FFS (Florida Forest Service)), State (FDEP, FWC), and County land managers (Miami-Dade RER and NAM (the Natural Areas Management division of Department of Parks, Recreation and Open Spaces), and nonprofit organizations (Institute for Regional Conservation (IRC), The Nature Conservancy (TNC)) implement prescribed fire on public and private lands within the ranges of these four plants. While management of some County conservation lands includes regular burning, other lands remain severely fire-suppressed. Even in areas under active management, some portions are typically fire-suppressed.

    Miami-Dade County: Implementation of a prescribed fire program in Miami-Dade County has been hampered by a shortage of resources, as well as by logistical difficulties and public concern related to burning next to residential areas. Many homes have been built in a mosaic of pine rocklands, so the use of prescribed fire in many places has become complicated because of potential danger to structures and smoke generated from the burns. Nonprofit organizations such as IRC have similar difficulties in conducting prescribed burns due to difficulties with permitting and obtaining the necessary permissions as well as hazard insurance limitations (Gann 2013a, pers. comm.). Few private landowners have the means or desire to implement prescribed fire on their property, and doing so in a fragmented urban environment is logistically difficult and may be costly.

    All occurrences of Linum arenicola and Argythamnia blodgettii in Miami-Dade County are affected by some degree of inadequate fire management of pine rocklands and marl prairie habitat, with the primary threat being the modification and loss of habitat due to an increase in shrub and hardwood dominance, eliminating suitable conditions for the four plants, and eventual succession to rockland hammock.

    In Miami-Dade County, Linum arenicola occurred along the south edge of Bauer Drive on the northern border of a pine rockland owned by Miami-Dade County. The property is occupied by a communications tower, and is not a managed preserve. Kernan and Bradley (1996) reported eight plants. At the time (1992 through 1996), the road shoulder was dominated by native grasses. Since then, native canopy hardwoods have invaded the site and eliminated the sunny conditions required by L. arenicola. It has not been seen since, despite multiple surveys between 1997 and 2012, and is considered to be extirpated. L. arenicola was discovered at Camp Owaissa Bauer by George N. Avery in 1983. Since that time, the pine rocklands habitat where he found the plants in the park suffered extremely heavy hardwood recruitment due to fire suppression. Despite recent hardwood control and reintroduction of fire, no plants have been relocated. Bradley and Gann (1999, pp. 71-72) suggested that the lack of fires in most forest fragments in Miami-Dade County during the last century may be one of the reasons why L. arenicola occurs primarily in disturbed areas.

    Monroe County (Florida Keys): Fire management of pine rocklands of the lower Florida Keys, most of which are within NKDR, is hampered by a shortage of resources, technical challenges, and expense of conducting prescribed fire in a matrix of public and private ownership. Residential and commercial properties are embedded within or in close proximity to pine rocklands habitat (Snyder et al. 2005, p. 2; C. Anderson 2012a, pers. comm.). As a result, hand or mechanical vegetation management may be necessary at select locations on Big Pine Key (Emmel et al. 1995, p. 11; Minno 2009, pers. comm.; Service 2010, pp. 1-68) to maintain or restore pine rocklands. Mechanical treatments may be less beneficial than fire because they do not quickly convert debris to nutrients, and remaining leaf litter may suppress seedling development; fire has also been found to stimulate seedling germination (C. Anderson 2010, pers. comm.). Because mechanical treatments may not provide the same ecological benefits as fire, NKDR continues to focus efforts on conducting prescribed fire where possible (C. Anderson 2012a, pers. comm.). However, the majority of pine rocklands within NKDR are several years behind the ideal fire return interval (5-7 years) suggested for this ecosystem (Synder et al. 2005, p. 2; Bradley and Saha 2011, pp. 1-16). Tree ring and sediment data show that pine rocklands in the lower Keys have burned at least every 5 years and sometimes up to three times per decade historically (Albritton 2009, p. 123; Horn et al. 2013, pp. 1-67; Harley 2012, pp. 1-246). From 1985 to 1992, prescribed burns were conducted in the NKDR mainly for fuel reduction. There was no prescribed burning by Service staff in the NKDR from 1992-1997, in part because not enough was known about the ecological effects of prescribed fire in this system (Snyder et al. 1990, p. 2).

    All occurrences of Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii in the Florida Keys are affected by some degree of inadequate fire management of pine rocklands habitat, with the primary threat being the modification and loss of habitat due to an increase in shrub and hardwood dominance, eliminating suitable conditions for the four plants, and eventual succession to rockland hammock.

    Prescribed fire management over the past decade has not been sufficient to reverse long-term declines in Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, or Linum arenicola on Big Pine Key. Prescribed fire activity on Big Pine Key and adjacent islands within NKDR appears to be insufficient to prevent loss of pine rocklands habitat (Carlson et al. 1993, p. 914; Bergh and Wisby 1996, pp. 1-2; O'Brien 1998, p. 209; Bradley and Saha 2009, pp. 28-29; Bradley et al. 2011, pp. 1-16). As a result, many of the pine rocklands across NKDR are being compromised by succession to rockland hammock (Bradley and Saha 2009, pp. 28-29; Bradley et al. 2011, pp. 1-16).

    Conservation Efforts To Reduce the Present or Threatened Destruction, Modification, or Curtailment of Habitat or Range

    Miami-Dade County Environmentally Endangered Lands (EEL) Covenant Program: In 1979, Miami-Dade County enacted the Environmentally Endangered Lands (EEL) Covenant Program, which reduces taxes for private landowners of natural forest communities (NFCs; pine rocklands and tropical hardwood hammocks) who agree not to develop their property and manage it for a period of 10 years, with the option to renew for additional 10-year periods (Service 1999, p. 3-177). Although these temporary conservation easements provide valuable protection for their duration, they are not considered under the discussion of Factor D, below, because they are voluntary agreements and not regulatory in nature. Miami-Dade County currently has approximately 59 pine rocklands properties enrolled in this program, preserving 69.4 ha (172 ac) of pine rocklands habitat (Johnson 2012, pers. comm.). The program also has approximately 21 rockland hammocks properties enrolled in this program, preserving 20.64 ha (51 ac) of rockland hammock habitat (Joyner 2013b, pers. comm.). The vast majority of these properties are small, and many are in need of habitat management such as prescribed fire and removal of nonnative, invasive plants. Thus, while EEL covenant lands have the potential to provide valuable habitat for these plants and reduce threats in the near term, the actual effect of these conservation lands is largely determined by whether individual landowners follow prescribed EEL management plans and NFC regulations (see “Local” under Factor D discussion, below).

    Fee Title Properties: In 1990, Miami-Dade County voters approved a 2-year property tax to fund the acquisition, protection, and maintenance of natural areas by the EEL Program. The EEL Program purchases and manages natural lands for preservation. Land uses deemed incompatible with the protection of the natural resources are prohibited by current regulations; however, the County Commission ultimately controls what may happen with any County property, and land use changes may occur over time (Gil 2013b, pers. comm.). To date, the Miami-Dade County EEL Program has acquired a total of approximately 313 ha (775 ac) of pine rocklands, and 95 ha (236 ac) of rockland hammocks (Guerra 2015, pers. comm.; Gil 2013b, pers. comm.). The EEL Program also manages approximately 314 ha (777 ac) of pine rocklands, and 639 ha (1,578 ac) of tropical hardwood and rockland hammocks owned by the Miami-Dade County Parks, Recreation and Open Spaces Department, including some of the largest remaining areas of pine rocklands habitat on the Miami Rock Ridge outside of ENP (e.g., Larry and Penny Thompson Park, Zoo Miami pinelands, Navy Wells Pineland Preserve), and some of the largest remaining areas of tropical hardwood and rockland hammocks (e.g., Matheson Hammock Park, Castellow Hammock Park, Deering Estate Park and Preserves).

    Conservation efforts in Miami's EEL Preserves have been underway for many years. In Miami-Dade County, conservation lands are and have been monitored by Fairchild Tropical Botanic Garden (FTBG) and IRC, in coordination with the EEL Program, to assess habitat status and determine any changes that may pose a threat to or alter the abundance of these species. Impacts to habitat (e.g., canopy) via nonnative species and natural stochastic events are monitored and actively managed in areas where the taxon is known to occur. These programs are long-term and ongoing in Miami-Dade County; however, programs are limited by the availability of annual funding.

    Since 2005, the Service has funded IRC to facilitate restoration and management of privately owned pine rocklands habitats in Miami-Dade County. These programs included prescribed burns, nonnative plant control, light debris removal, hardwood management, reintroduction of pines where needed, and development of management plans. One of these programs, called the Pine Rockland Initiative, includes 10-year cooperative agreements between participating landowners and the Service/IRC to ensure restored areas will be managed appropriately during that time. Although most of these objectives have been achieved, IRC has not been able to conduct the desired prescribed burns, due to logistical difficulties as discussed earlier (see “Fire Management,” above).

    Connect to Protect Program: FTBG, with the support of various Federal, State, and local agencies and nonprofit organizations, has established the “Connect to Protect Network.” The objective of this program is to encourage widespread participation of citizens to create corridors of healthy pine rocklands by planting stepping stone gardens and rights-of-way with native pine rocklands species, and restoring isolated pine rocklands fragments. By doing this, FTBG hopes to increase the probability that pollination and seed dispersal vectors can find and transport seeds and pollen across developed areas that separate pine rocklands fragments to improve gene flow between fragmented plant populations and increase the likelihood that these plants will persist over the long term. Although these projects may serve as valuable components toward the conservation of pine rocklands species and habitat, they are dependent on continual funding, as well as participation from private landowners, both of which may vary through time.

    National Wildlife Refuges: The National Wildlife Refuge System Improvement Act of 1997 (16 U.S.C. 668dd note) and the Fish and Wildlife Service Manual (601 FW 3, 602 FW 3) require maintaining biological integrity and diversity, require comprehensive conservation planning for each refuge, and set standards to ensure that all uses of refuges are compatible with their purposes and the Refuge System's wildlife conservation mission. The comprehensive conservation plans (CCPs) address conservation of fish, wildlife, and plant resources and their related habitats, while providing opportunities for compatible wildlife-dependent recreation uses. An overriding consideration reflected in these plans is that fish and wildlife conservation has first priority in refuge management, and that public use be allowed and encouraged as long as it is compatible with, or does not detract from, the Refuge System mission and refuge purpose(s). The CCP for the Lower Florida Keys National Wildlife Refuges (NKDR, Key West National Wildlife Refuge, and Great White Heron National Wildlife Refuge) provides a description of the environment and priority resource issues that were considered in developing the objectives and strategies that guide management over the next 15 years. The CCP promotes the enhancement of wildlife populations by maintaining and enhancing a diversity and abundance of habitats for native plants and animals, especially imperiled species that are found only in the Florida Keys. The CCP also provides for obtaining baseline data and monitoring indicator species to detect changes in ecosystem diversity and integrity related to climate change. The CCP provides specifically for maintaining and expanding populations of candidate plant species, including Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii, all four of which are found in this refuge complex.

    Department of Defense Lands: The Sikes Act requires the DOD to develop and implement integrated natural resources management plans (INRMPs) for military installations across the United States (see also Factor D discussion, below). INRMPs are prepared in cooperation with the Service and State fish and wildlife agencies to ensure proper consideration of fish, wildlife, and habitat needs. The DOD has an approved INRMP for Key West Naval Air Station (KWNAS) on Boca Chica Key that includes measures that will protect and enhance Argythamnia blodgettii habitat, including nonnative species control (DOD 2014, p. 69). Furthermore, DOD is currently preparing an INRMP for Homestead Air Reserve Base (HARB) and SOCSOUTH. A previous biological opinion (Service 2011, entire) required SOCSOUTH to protect and manage 7.4 ha (18.3 ac) of pine rocklands habitat and 70,909 individuals of Linum arenicola (approximately 96 percent of the estimated onsite population) based on 2009 survey data. A conservation easement was established over the protected areas, and DOD has provided funds for management of the site, including fencing and nonnative species control.

    Summary of Factor A

    We have identified a number of threats to the habitat of Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii that have operated in the past, are impacting these species now, and will continue to impact them in the future. Habitat loss, fragmentation, and degradation, and associated pressures from increased human population, are major threats; these threats are expected to continue, placing these plants at greater risk. All four plants may be impacted when pine rocklands are converted to other uses or when lack of fire causes the conversion to hardwood hammocks or other unsuitable habitat conditions. Any populations of these species found on private property could be destroyed by development; the limited pine rocklands, rockland hammock, and coastal berm habitat on public lands can also be affected by development of recreational facilities or infrastructure projects. Although efforts are being made to conserve publicly and privately owned natural areas and apply prescribed fire, the long-term effects of large-scale and wide-ranging habitat modification, destruction, and curtailment will last into the future, while ongoing habitat loss due to population growth, development, and agricultural conversion continues to pose a threat. Therefore, based on the best information available, we have determined that the threats to the four plants from habitat destruction, modification, or curtailment are occurring throughout the entire range of the species and are expected to continue into the future.

    Factor B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes

    The best available data do not indicate that overutilization for commercial, recreational, scientific, or educational purposes is a threat to Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, or Argythamnia blodgettii. Threats to these plants related to other aspects of recreation and similar human activities (i.e., not related to overutilization) are discussed under Factor E, below.

    Factor C. Disease or Predation

    No diseases or incidences of predation have been reported for Chamaesyce deltoidea ssp. serpyllum or Argythamnia blodgettii.

    Key deer are known to occasional browse plants indiscriminately, including Chamaecrista lineata var. keyensis and Linum arenicola. Key deer do not appear to feed on Argythamnia blodgettii, probably due to potential toxicity (Hodges and Bradley 2006, p. 19).

    Seed predation by an insect occurs in Chamaecrista lineata var. keyensis, and seems to be exacerbated by habitat fragmentation. Individuals at the urban edge suffer higher insect seed predation than those inside the forest (Liu and Koptur 2003, p. 1184).

    While seed predation and occasional Key deer browsing may be a stressor, they do not appear to rise to the level of threat at this time. Therefore, the best available data do not indicate that disease or predation is a threat to Chamaecrista lineata var. keyensis or Linum arenicola.

    Factor D. The Inadequacy of Existing Regulatory Mechanisms

    Under this factor, we examine whether threats to these plants are discussed under the other factors are continuing due to an inadequacy of an existing regulatory mechanism. Section 4(b)(1)(A) of the Act requires the Service to take into account “those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species.” In relation to Factor D under the Act, we interpret this language to require the Service to consider relevant Federal, State, and tribal laws, regulations, and other such mechanisms that may minimize any of the threats we describe in threat analyses under the other four factors, or otherwise enhance conservation of the species. We give strongest weight to statutes and their implementing regulations and to management direction that stems from those laws and regulations. Examples are State governmental actions enforced under a State statute or constitution, and Federal actions authorized by statute.

    Having evaluated the impact of the threats as mitigated by any such conservation efforts, we analyze under Factor D the extent to which existing regulatory mechanisms are inadequate to address the specific threats to the species. Regulatory mechanisms, if they exist, may reduce or eliminate the impacts from one or more identified threats. In this section, we review existing Federal, State, and local regulatory mechanisms to determine whether they effectively reduce or remove threats to Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii.

    Federal

    As Federal candidate species, the four plants are afforded some protection through sections 7 and 10 of the Act and associated policies and guidelines. Service policy requires that candidate species be treated as proposed species for purposes of intra-Service consultations and conferences where the Service's actions may affect candidate species. Other Federal action agencies (e.g., NPS) are to consider the potential effects (e.g., prescribed fire, pesticide treatments) to these plants and their habitat during the consultation and conference process. Applicants and Federal action agencies are encouraged to consider candidate species when seeking incidental take for other listed species and when developing habitat conservation plans. However, candidate species do not receive the same level of protection that a listed species does under the Act.

    Populations of Argythamnia blodgettii within ENP are protected by NPS regulations at 36 CFR 2.1, which prohibit visitors from harming or removing plants, listed or otherwise, from ENP. However, the regulations do not address actions taken by NPS that cause habitat loss or modification.

    As discussed above under Factor A, the CCPs for the Lower Florida Keys National Wildlife Refuge and the Crocodile Lake National Wildlife Refuge provide for Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii. Linum arenicola occurs on DOD lands at HARB and SOCSOUTH. L. arenicola and A. blodgettii may occur on Federal lands within the Richmond Pine rocklands, including lands owned by the U.S. Coast Guard.

    As discussed under Factor A, above, the DOD has an approved INRMP for KWNAS on Boca Chica Key that includes measures that will protect and enhance Argythamnia blodgettii habitat, including nonnative species control (DOD 2014, p. 69). Furthermore, as also discussed above, DOD is currently preparing an INRMP for HARB and SOCSOUTH, and a 2011 Service biological opinion requires SOCSOUTH to protect and manage 7.4 ha (18.3 ac) of pine rocklands habitat and 70,909 individuals of Linum arenicola.

    However, certain populations of the four plants occur on State- or county-owned properties, and development of these areas will likely require no Federal permit or other authorization. Therefore, projects that affect the plants on State- and county-owned lands do not have Federal oversight, such as complying with the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), unless the project has a Federal nexus (Federal funding, permits, or other authorizations). Therefore, the four plants have no direct Federal regulatory protection in these areas.

    State

    Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii are listed on the Regulated Plant Index (Index) as endangered under chapter 5B-40, Florida Administrative Code. This listing provides little or no habitat protection beyond the State's development of a regional impact process, which discloses impacts from projects, but provides only limited regulatory protection for State-listed plants on private lands.

    Florida Statutes 581.185 sections (3)(a) and (3)(b) prohibit any person from willfully destroying or harvesting any species listed as endangered or threatened on the Index, or growing such a plant on the private land of another, or on any public land, without first obtaining the written permission of the landowner and a permit from the Florida Department of Plant Industry. The statute further provides that any person willfully destroying or harvesting; transporting, carrying, or conveying on any public road or highway; or selling or offering for sale any plant listed in the Index as endangered must have a permit from the State at all times when engaged in any such activities. Further, Florida Statutes 581.185 section (10) provides for consultation similar to section 7 of the Act for listed species, by requiring the Department of Transportation to notify the Florida Department of Agriculture and Consumer Services and the Endangered Plant Advisory Council of planned highway construction at the time bids are first advertised, to facilitate evaluation of the project for listed plant populations, and to provide “for the appropriate disposal of such plants” (i.e., transplanting).

    However, this statute provides no substantive protection of habitat or protection of potentially suitable habitat at this time. Florida Statutes 581.185 section (8) waives State regulation for certain classes of activities for all species on the Index, including the clearing or removal of regulated plants for agricultural, forestry, mining, construction (residential, commercial, or infrastructure), and fire-control activities by a private landowner or his or her agent.

    Local

    In 1984, section 24-49 of the Code of Miami-Dade County established regulation of County-designated NFCs. These regulations were placed on specific properties throughout the County by an act of the Board of County Commissioners in an effort to protect environmentally sensitive forest lands. The Miami-Dade County RER has regulatory authority over these County-designated NFCs and is charged with enforcing regulations that provide partial protection of remaining upland forested areas designated as NFC on the Miami Rock Ridge. NFC regulations are designed to prevent clearing or destruction of native vegetation within preserved areas. Miami-Dade County Code typically allows up to 20 percent of pine rocklands designated as NFC to be developed, and requires that the remaining 80 percent be placed under a perpetual covenant. The code requires that no more than 10 percent of a rockland hammock designated as NFC may be developed for properties greater than 5 acres and that the remaining 90 percent be placed under a perpetual covenant for preservation purposes (Joyner 2013a, 2014, pers. comm.; Lima 2014, pers. comm.). However, for properties less than 5 acres, up to one-half an acre may be cleared if the request is deemed a reasonable use of property; this allowance often may be greater than 20 percent (for pine rocklands) or 10 percent (for rockland hammock) of the property (Lima 2014, pers. comm.). NFC landowners are also required to obtain an NFC permit for any work, including removal of nonnatives within the boundaries of the NFC on their property. When RER discovers unpermitted work, it takes appropriate enforcement action and seeks restoration when possible. The NFC program is responsible for ensuring that NFC permits are issued in accordance with the limitations and requirements of the county code and that appropriate NFC preserves are established and maintained in conjunction with the issuance of an NFC permit when development occurs. The NFC program currently regulates approximately 600 pine rocklands or pine rocklands/hammock properties, comprising approximately 1,200 ha (3,000 ac) of habitat (Joyner 2013, pers. comm.).

    Although the NFC program is designed to protect rare and important upland (non-wetlands) habitats in south Florida, the strategy has limitations. For example, in certain circumstances where landowners can demonstrate that limiting development to 20 percent (for pine rocklands) or 10 percent (for rockland hammock) does not allow for “reasonable use” of the property, additional development may be approved. Furthermore, Miami-Dade County Code provides for up to 100 percent of the NFC to be developed in limited circumstances for parcels less than 2.02 ha (5 ac) in size and only requires coordination with landowners if they plan to develop property or perform work within the NFC-designated area. Therefore, many of the existing private forested NFC parcels remain fragmented, without management obligations or preserve designation, as development has not been proposed at a level that would trigger the NFC regulatory requirements. Often, nonnative vegetation over time begins to dominate and degrade the undeveloped and unmanaged NFC landscape until it no longer meets the legal threshold of an NFC, which applies only to land dominated by native vegetation. When development of such degraded NFCs is proposed, Miami-Dade County Code requires delisting of the degraded areas as part of the development process. Property previously designated as NFC is removed from the list even before development is initiated because of the abundance of nonnative species, making it no longer considered to be jurisdictional or subject to the NFC protection requirements of Miami-Dade County Code (Grossenbacher 2013, pers. comm.).

    Summary of Factor D

    Currently, Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii are found on Federal, State, and county lands; however, there is no regulatory mechanism in place that provides substantive protection of habitat or protection of potentially suitable habitat at this time. NPS and Service Refuge regulations provide protection at ENP and the Florida Keys Wildlife Refuge Complex, respectively. The Act provides some protection for candidate species on National Wildlife Refuges and during intra-Service section 7 consultations. State regulations provide protection against trade, but allow private landowners or their agents to clear or remove species on the Florida Regulated Plant Index. State Park regulations provide protection for plants within Florida State Parks. The NFC program in Miami is designed to protect rare and important upland (non-wetlands) habitats in south Florida; however, this regulatory strategy has several limitations (as described above) that reduce its ability to protect the four plants and their habitats.

    Although many populations of the four plants are afforded some level of protection because they are on public conservation lands, existing regulatory mechanisms have not led to a reduction or removal of threats posed to these plants by a wide array of sources (see discussions under Factor A, above, and Factor E, below).

    Factor E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Other natural or manmade factors affect Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii to varying degrees. Specific threats to these plants included in this factor consist of the spread of nonnative, invasive plants; potentially incompatible management practices (such as mowing and herbicide use); small population size and isolation; effects of pesticide spraying on pollinators; climate change and sea level rise (SLR); and risks from environmental stochasticity (extreme weather) on these small populations. Each of these threats and its specific effect on these plants is discussed in detail below.

    Nonnative Plant Species

    Nonnative, invasive plants compete with native plants for space, light, water, and nutrients, and make habitat conditions unsuitable for Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii, which prefer open conditions. Bradley and Gann (1999, pp. 13, 71-72) indicated that the control of nonnative plants is one of the most important conservation actions for these plants and a critical part of habitat maintenance.

    Nonnative plants have significantly affected pine rocklands, and threaten all occurrences of these four species to some degree (Bradley 2006, pp. 25-26; Bradley and Gann 1999, pp. 18-19; Bradley and Saha 2009, p. 25; Bradley and van der Heiden 2013, pp. 12-16). As a result of human activities, at least 277 taxa of nonnative plants have invaded pine rocklands throughout south Florida (Service 1999, p. 3-175). Neyraudia neyraudia (Burma reed) and Schinus terebinthifolius (Brazilian pepper) threaten all four species (Bradley and Gann 1999, pp. 13, 72). S. terebinthifolius, a nonnative tree, is the most widespread and one of the most invasive species. It forms dense thickets of tangled, woody stems that completely shade out and displace native vegetation (Loflin 1991, p. 19; Langeland and Craddock Burks 1998, p. 54). Acacia auriculiformis (earleaf acacia), Rhynchelytrum repens (natal grass), Lantana camara (shrub verbena), and Albizia lebbeck (tongue tree) are some of the other nonnative species in pine rocklands. More species of nonnative plants could become problems in the future, such as Lygodium microphyllum (Old World climbing fern), which is a serious threat throughout south Florida. Nonnative plants in pine rocklands can also affect the characteristics of a fire when it does occur. Historically, pine rocklands had an open, low understory where natural fires remained patchy with low temperature intensity, thus sparing many native plants such as Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii. Dense infestations of Neyraudia neyraudia and Schinus terebinthifolius cause higher fire temperatures and longer burning periods. With the presence of invasive, nonnative species, it is uncertain how fire, even under a managed situation, will affect these plants.

    At least 162 nonnative plant species are known to invade rockland hammocks; impacts are particularly severe on the Miami Rock Ridge (Service 1999, pp. 3-135). Nonnative plant species have significantly affected rockland hammocks where Argythamnia blodgettii occurs and are considered one of the threats to the species (Snyder et al. 1990, p. 273; Hodges and Bradley 2006, p. 14). In many Miami-Dade County parks, nonnative plant species comprise 50 percent of the flora in hammock fragments (Service 1999, pp. 3-135). Horvitz (et al. 1998, p. 968) suggests the displacement of native species by nonnative species in conservation and preserve areas is a complex problem with serious impacts to biodiversity conservation, as management in these areas generally does not protect native species and ecological processes, as intended. Problematic nonnative, invasive plants associated with rockland hammocks include Leucaena leucocephala (lead tree), Schinus terebinthifolius, Bischofia javanica (bishop wood), Syngonium podophyllum (American evergreen), Jasminum fluminense (Brazilian jasmine), Rubus niveus (mysore raspberry), Nephrolepis brownii (Asian swordfern), Schefflera actinophylla (octopus tree), Jasminum dichotomum (Gold Coast jasmine), Epipremnum pinnatum (centipede tongavine), and Nephrolepis cordifolia (narrow swordfern) (Possley 2013h-i, pers. comm.).

    Management of nonnative, invasive plants in pine rocklands and rockland hammocks in Miami-Dade County is further complicated because the vast majority of pine rocklands and rockland hammocks are small, fragmented areas bordered by urban development. In the Florida Keys, larger fragments are interspersed with development. Developed or unmanaged areas that contain nonnative species can act as a seed source for nonnatives, allowing them to continue to invade managed pine rocklands or rockland hammocks (Bradley and Gann 1999, p. 13).

    Nonnative plant species are also a concern on private lands, where often these species are not controlled due to associated costs, lack of interest, or lack of knowledge of detrimental impacts to the ecosystem. Undiscovered populations of the four plants on private lands could certainly be at risk. Overall, active management is necessary to control for nonnative species and to protect unique and rare habitats where the four plants occur (Snyder et al. 1990, p. 273).

    Management of Roadsides and Disturbed Areas

    All four plants occur in disturbed areas such as roadsides and areas that formerly were pine rocklands. Linum arenicola is particularly vulnerable to management practices in these areas because nearly all populations of the species are currently found on disturbed sites. The large L. arenicola population at HARB and SOCSOUTH is located largely in areas that are regularly mowed. Similarly, the small population of L. arenicola at the Everglades Archery Range, which is owned by Miami-Dade County and managed as a part of Camp Owaissa Bauer, is growing along the edges of the unimproved perimeter road that is regularly mowed. Finally, the two populations of L. arenicola on canal banks are subject to mowing, herbicide treatments, and revegetation efforts (sodding) (Bradley and van der Heiden 2013, pp. 8-10). The population of Argythamnia blodgettii at Lignumvitae Key Botanical State Park grows around the perimeter of the large lawn around the residence. Maintenance activities and encroachment of exotic lawn grasses are potential threats to this population (Hodges and Bradley 2006, p. 14). At Windley Key State Park, A. blodgettii grows in two quarry bottoms. In the first, larger quarry, to the east of the visitor center, plants apparently persist only in natural areas not being mowed. However, the majority of the plants are in the farthest quarry, which is not mowed (Hodges and Bradley 2006, p. 15).

    While no studies have investigated the effect of mowing on the four plants, research has been conducted on the federally endangered Linum carteri var. carteri (Carter's small-flowered flax, a close relative of Linum arenicola that also occurs in pine rocklands and disturbed sites). The study found significantly higher densities of plants at the mown sites where competition with other plants is decreased (Maschinski and Walters 2007, p. 56). However, plants growing on mown sites were shorter, which may affect fruiting magnitude. While mowing did not usually kill adult plants, if mowing occurred prior to plants reaching reproductive status, it could delay reproduction (Maschinski and Walters 2007, pp. 56-57). If such mowing occurs repeatedly, reproduction of those plants would be entirely eliminated. If, instead, mowing occurs at least 3 weeks after flowering, there would be a higher probability of adults setting fruit prior to mowing; mowing may then act as a positive disturbance by both scattering seeds and reducing competition (Maschinski and Walters 2007, p. 57). The exact impacts of mowing thus depend on the timing of the mowing event, rainfall prior to and following mowing, and the numbers of plants in the population that have reached a reproductive state.

    Herbicide applications, the installation of sod, and dumping may affect populations of the four plants that occur on roadsides, canals banks, and other disturbed sites. Signs of herbicide application were noted at the site of the Big Torch Key roadside population of Linum arenicola in 2010 (Hodges 2010, p. 2). At the L-31 E canal site, plants of L. arenicola were lost on the levee close to Card Sound Road due to the installation of Bahia grass (Paspalum conjugatum) sod in recent years, an activity associated with the installation of new culverts. If similar projects are planned, other erosion control measures should be investigated that do not pose a threat to L. arenicola (Bradley and Van Der Heiden 2013, p. 10). Illegal dumping of storm-generated trash after Hurricane Wilma had a large impact on roadside populations of plants in the lower Florida Keys (Hodges and Bradley 2006, pp. 11-12, 19, 39).

    All populations of the four plants that occur on disturbed sites are vulnerable to regular maintenance activities such as mowing and herbicide applications, and dumping. This includes portions of all populations of Chamaecrista lineata var. keyensis and Chamaesyce deltoidea ssp. serpyllum, 10 of 12 Linum arenicola populations, and 5 of 34 Argythamnia blodgettii populations. All roadside populations are also vulnerable to infrastructure projects such as road widening and installation of underground cable, sewer, and water lines.

    Pesticide Effects on Pollinators

    Another potential anthropogenic threat to the four plants is current application of insecticides throughout these plants' ranges to control mosquito populations. Currently, an aerial insecticide (1,2-dibromo-2,2-dichloroethyl dimethyl phosphate) and ground insecticide (Permethrin) are applied during the May through November timeframe in many parts of south Florida. Nontarget effects of mosquito control may include the loss of pollinating insects upon which certain plants depend.

    Koptur and Liu (2003, p. 1184) reported a decrease in Chamaecrista lineata var. keyensis pollinator activity following mosquito spraying on Big Pine Key. Mosquito spraying remains a factor on Big Pine Key, and its suppression of pollinator populations may have a long-term impact on reproduction rates. Extensive studies in the Florida Keys suggest that broad spectrum insecticides negatively affect nontarget invertebrates, including pollinators (Hennessey 1991; Eliazar and Emmel 1991; Kevan et al. 1997; Salvato 2001; Bargar 2011; Hoang et al. 2011). In addition, pesticides have been shown to drift into adjacent undisturbed habitat that serves as a refuge for native biota (Hennessey 1992; Pierce et al. 2005; Zhong et al. 2010; Bargar 2011). These pesticides can be fatal to nontarget invertebrates that move between urban and forest habitats, altering ecological processes within forest communities (Kevan and Plowright 1989, 1995; Liu and Koptur 2003).

    Pesticide spraying practices by the Monroe County Mosquito Control District within NKDR have changed to reduce pesticide use and limit insecticide drift into pine rocklands habitat as a result of agreements between the Service and Florida Keys Mosquito Control District (FKMCD) after critical habitat was designated in 2014 for the Florida leafwing (Anaea troglodyta floridalis) and Bartram's scrub-hairstreak (Strymon acis bartrami) butterflies (79 FR 47180; August 12, 2014). This designation includes all pine rockland within NKDR where its sole larval host, Croton linearis, can potentially occur.

    Since 2003, expanded larvicide treatments to surrounding islands have significantly reduced adulticide use on Big Pine Key, No Name Key, and the Torch Keys. In addition, the number of aerially applied Naled treatments allowed on NKDR has been limited since 2008 (Florida Key Mosquito Control District 2012, pp. 10-11). Designated “No spray zones” that include the core habitat used by pine rockland butterflies and several linear miles of pine rocklands habitat within the Refuge-neighborhood interface are now excluded from truck spray applications (Anderson 2012, pers. comm.; Service 2012, p. 32). These exclusions and buffer zones encompass over 95 percent of extant croton distribution on Big Pine Key, and include the majority of known recent and historical Florida leafwing population centers on the island (Salvato 2012, pers. comm.). The area largely coincides with the range of these four plants in the lower Florida Keys. Therefore, the effects of mosquito control pesticide application on the pollinators of the four plants have been minimized at NKDR.

    In summary, critical habitat regulations for Bartram's scrub-hairstreak butterfly and Florida leafwing have extended benefits to populations of these four plants and their pollinator guild by limiting mosquito insecticide activity in pine rocklands habitat in the Florida Keys. Nevertheless, we are proceeding cautiously and have initiated a multi-year research project to further investigate the level of impact pesticides have on these four plants and their pollinators throughout their ranges.

    Environmental Stochasticity

    Endemic species whose populations exhibit a high degree of isolation and narrow geographic distribution, such as Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii, are extremely susceptible to extinction from both random and nonrandom catastrophic natural or human-caused events. Of the four species, Argythamnia blodgettii is probably less vulnerable because of the larger number of sites where it occurs throughout Miami-Dade and Monroe Counties. Small populations of species, without positive growth rates, are considered to have a high extinction risk from site-specific demographic and environmental stochasticity (Lande 1993, pp. 911-927).

    The climate of south Florida is driven by a combination of local, regional, and global weather events and oscillations. There are three main “seasons”: (1) The wet season, which is hot, rainy, and humid from June through October; (2) the official hurricane season that extends one month beyond the wet season (June 1 through November 30), with peak season being August and September; and (3) the dry season, which is drier and cooler, from November through May. In the dry season, periodic surges of cool and dry continental air masses influence the weather with short-duration rain events followed by long periods of dry weather.

    Florida is considered the most vulnerable State in the United States to hurricanes and tropical storms (Florida Climate Center, http://coaps.fsu.edu/climate_center). Based on data gathered from 1856 to 2008, Klotzbach and Gray (2009, p. 28) calculated the climatological probabilities for each State being impacted by a hurricane or major hurricane in all years over the 152-year timespan. Of the coastal States analyzed, Florida had the highest climatological probabilities, with a 51 percent probability of a hurricane (Category 1 or 2) and a 21 percent probability of a major hurricane (Category 3 or higher). From 1856 to 2008, Florida experienced 109 hurricanes, 36 of which were considered major hurricanes. Given the few isolated populations and restricted range of the four plants in locations prone to storm influences (i.e., Miami-Dade and Monroe Counties), they are at substantial risk from hurricanes, storm surges, and other extreme weather events.

    Hurricanes, storm surge, and extreme high tide events are natural events that can pose a threat to the four plants. Hurricanes and tropical storms can modify habitat (e.g., through storm surge) and have the potential to destroy entire populations. Climate change may lead to increased frequency and duration of severe storms (Golladay et al. 2004, p. 504; McLaughlin et al. 2002, p. 6074; Cook et al. 2004, p. 1015). The four plants experienced these disturbances historically, but had the benefit of more abundant and contiguous habitat to buffer them from extirpations. With most of the historical habitat having been destroyed or modified, the few remaining populations of these plants could face local extirpations due to stochastic events.

    The Florida Keys were impacted by three hurricanes in 2005: Katrina on August 26, Rita on September 20, and Wilma on October 24. Hurricane Wilma had the largest impact, with storm surges flooding much of the landmass of the Keys. In some places, this water impounded and sat for days. The vegetation in many areas was top-killed due to salt water inundation (Hodges and Bradley 2006, p. 9). Flooding kills plants that do not have adaptations to tolerate anoxic soil conditions that persist after flooding; the flooding and resulting high salinities might also impact soil seed banks of the four plants (Bradley and Saha 2009, pp. 27-28). After hurricane Wilma, the herb layer in pine rocklands in close proximity to the coast was brown with few plants having live material above ground (Bradley 2006, p. 11). Subsequent surveys found no Linum arenicola and little Chamaecrista lineata var. keyensis or Chamaesyce deltoidea ssp. serpyllum in areas where they previously occurred. Not only did the storm surge kill the vegetation, but many of the roadside areas were heavily disturbed by dumping and removal of storm debris (Bradley 2006, p. 37). Estimates of the population sizes pre- and post-Wilma were calculated for Chamaesyce deltoidea ssp. serpyllum and Chamaecrista lineata var. keyensis. Each declined in the months following the storm, by 41.2 percent and 48.0 percent, respectively (Bradley and Saha 2009, p. 2). L. arenicola was not found at all in surveys 8 to 9 weeks after the hurricane (Bradley 2006, p. 36). The Middle Torch Key population was extirpated after Hurricane Wilma, and the population on Big Torch Key declined drastically, with only one individual located. Both of these areas were heavily affected by storm surges during Hurricane Wilma (Hodges 2010, p. 2). As of 2013, populations of Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, and L. arenicola in the Florida Keys have not returned to pre-Hurricane Wilma levels (Bradley et al. 2015, pp. 21, 25, 29).

    Some climate change models predict increased frequency and duration of severe storms, including hurricanes and tropical storms (McLaughlin et al. 2002, p. 6074; Cook et al. 2004, p. 1015; Golladay et al. 2004, p. 504). Other models predict hurricane and tropical storm frequencies in the Atlantic are expected to decrease between 10 and 30 percent by 2100 (Knutson et al. 2008, pp. 1-21). For those models that predict fewer hurricanes, predictions of hurricane wind speeds are expected to increase by 5 to 10 percent due to an increase in available energy for intense storms. Increases in hurricane winds can elevate the chances of damage to existing canopy and increase storm surge heights.

    All populations of the four plants are vulnerable to hurricane wind damage. Populations close to the coast and all populations of the four plants in the Florida Keys are vulnerable to inundation by storm surge. Historically, the four plant species may have benefitted from more abundant and contiguous habitat to buffer them from storm events. The small size of many populations of these plants makes them especially vulnerable, in which the loss of even a few individuals could reduce the viability of a single population. The destruction and modification of native habitat, combined with small population size, has likely contributed over time to the stress, decline, and, in some instances, extirpation of populations or local occurrences due to stochastic events.

    Due to the small size of some existing populations of Chamaecrista lineata var. keyensis, Linum arenicola, and Argythamnia blodgettii (see below) and the narrow geographic range of all four plant species, their overall resilience to these factors is likely low. These factors, combined with additional stress from habitat loss and modification (e.g., inadequate fire management) may increase the inherent risk of stochastic events that impact these plants. For these reasons, all four plants are at risk of extirpation during extreme stochastic events. Of the four species, Argythamnia blodgettii is probably less vulnerable because of the larger number of sites where it occurs throughout Miami-Dade and Monroe Counties.

    Small Population Size and Isolation

    Endemic species whose populations exhibit a high degree of isolation are extremely susceptible to extinction from both random and nonrandom catastrophic natural or human-caused events. Species that are restricted to geographically limited areas are inherently more vulnerable to extinction than widespread species because of the increased risk of genetic bottlenecks, random demographic fluctuations, climate change, and localized catastrophes such as hurricanes and disease outbreaks (Mangel and Tier 1994, p. 607; Pimm et al. 1998, p. 757). These problems are further magnified when populations are few and restricted to a very small geographic area, and when the number of individuals is very small. Populations with these characteristics face an increased likelihood of stochastic extinction due to changes in demography, the environment, genetics, or other factors (Gilpin and Soule 1986, pp. 24-34). Small, isolated populations often exhibit reduced levels of genetic variability, which diminishes the species' capacity to adapt and respond to environmental changes, thereby decreasing the probability of long-term persistence (e.g., Barrett and Kohn 1991, p. 4; Newman and Pilson 1997, p. 361). Very small plant populations may experience reduced reproductive vigor due to ineffective pollination or inbreeding depression. Isolated individuals have difficulty achieving natural pollen exchange, which limits the production of viable seed. The problems associated with small population size and vulnerability to random demographic fluctuations or natural catastrophes are further magnified by synergistic interactions with other threats, such as those discussed above (see Factors A and C).

    Chamaecrista lineata var. keyensis and Chamaesyce deltoidea ssp. serpyllum both have large populations on Big Pine Key. The other extant occurrence of Chamaecrista lineata var. keyensis in the Florida Keys, on Cudjoe Key, is small. Five out of 12 extant Linum arenicola populations, and 20 of 34 Argythamnia blodgettii populations, have fewer than 100 individuals. These small populations are at risk of adverse effects from reduced genetic variation, an increased risk of inbreeding depression, and reduced reproductive output. Many of these populations are small and isolated from each other, decreasing the likelihood that they could be naturally reestablished in the event that extinction from one location would occur. Argythamnia blodgettii is the only one of the four plants species that occurs in ENP, where a population of over 2,000 plants is stable and prescribed fire and other management activities that benefit A. blodgettii are conducted on a regular basis.

    Climate Change and Sea Level Rise

    Climatic changes, including sea level rise (SLR), are occurring in the State of Florida and are impacting associated plants, animals, and habitats. Our analyses under the Act include consideration of ongoing and projected changes in climate. The term “climate,” as defined by the Intergovernmental Panel on Climate Change (IPCC), refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2013, p. 1450). The term “climate change” thus refers to a change in the mean or variability of one or more measures of climate (e.g., temperature or precipitation) that persists for an extended period, typically decades or longer, whether the change is due to natural variability, human activity, or both (IPCC 2013, p. 1450). A recent compilation of climate change and its effects is available from IPCC reports (IPCC 2013, entire).

    Scientific measurements spanning several decades demonstrate that changes in climate are occurring, and that the rate of change has been faster since the 1950s. Examples include warming of the global climate system, and substantial increases in precipitation in some regions of the world and decreases in other regions. (For these and other examples, see IPCC 2007a, p. 30; Solomon et al. 2007, pp. 35-54, 82-85). Results of scientific analyses presented by the IPCC show that most of the observed increase in global average temperature since the mid-20th century cannot be explained by natural variability in climate, and is “very likely” (defined by the IPCC as 90 percent or higher probability) due to the observed increase in greenhouse gas (GHG) concentrations in the atmosphere as a result of human activities, particularly carbon dioxide emissions from use of fossil fuels (IPCC 2007a, pp. 5-6 and figures SPM.3 and SPM.4; Solomon et al. 2007, pp. 21-35). Further confirmation of the role of GHGs comes from analyses by Huber and Knutti (2011, p. 4), who concluded it is extremely likely that approximately 75 percent of global warming since 1950 has been caused by human activities.

    Scientists use a variety of climate models, which include consideration of natural processes and variability, as well as various scenarios of potential levels and timing of GHG emissions, to evaluate the causes of changes already observed and to project future changes in temperature and other climate conditions (e.g., Meehl et al. 2007, entire; Ganguly et al. 2009, pp. 11555, 15558; Prinn et al. 2011, pp. 527, 529). All combinations of models and emissions scenarios yield very similar projections of increases in the most common measure of climate change, average global surface temperature (commonly known as global warming), until about 2030. Although projections of the magnitude and rate of warming differ after about 2030, the overall trajectory of all the projections is one of increased global warming through the end of this century, even for the projections based on scenarios that assume that GHG emissions will stabilize or decline. Thus, there is strong scientific support for projections that warming will continue through the 21st century, and that the magnitude and rate of change will be influenced substantially by the extent of GHG emissions (IPCC 2007a, pp. 44-45; Meehl et al. 2007, pp. 760-764, 797-811; Ganguly et al. 2009, pp. 15555-15558; Prinn et al. 2011, pp. 527, 529). (See IPCC 2007b, p. 8, for a summary of other global projections of climate-related changes, such as frequency of heat waves and changes in precipitation. Also see IPCC 2011 (entire) for a summary of observations and projections of extreme climate events.)

    Various changes in climate may have direct or indirect effects on species. These effects may be positive, neutral, or negative, and they may change over time, depending on the species and other relevant considerations, such as interactions of climate with other variables (e.g., habitat fragmentation) (IPCC 2007, pp. 8-14, 18-19). Identifying likely effects often involves aspects of climate change vulnerability analysis. Vulnerability refers to the degree to which a species (or system) is susceptible to, and unable to cope with, adverse effects of climate change, including climate variability and extremes. Vulnerability is a function of the type, magnitude, and rate of climate change and variation to which a species is exposed, its sensitivity, and its adaptive capacity (IPCC 2007a, p. 89; see also Glick et al. 2011, pp. 19-22). There is no single method for conducting such analyses that applies to all situations (Glick et al. 2011, p. 3). We use our expert judgment and appropriate analytical approaches to weigh relevant information, including uncertainty, in our consideration of various aspects of climate change.

    As is the case with all stressors that we assess, even if we conclude that a species is currently affected or is likely to be affected in a negative way by one or more climate-related impacts, it does not necessarily follow that the species meets the definition of an “endangered species” or a “threatened species” under the Act. If a species is listed as endangered or threatened, knowledge regarding the vulnerability of the species to, and known or anticipated impacts from, climate-associated changes in environmental conditions can be used to help devise appropriate strategies for its recovery.

    Global climate projections are informative, and, in some cases, the only or the best scientific information available for us to use. However, projected changes in climate and related impacts can vary substantially across and within different regions of the world (e.g., IPCC 2007a, pp. 8-12). Therefore, we use “downscaled” projections when they are available and have been developed through appropriate scientific procedures, because such projections provide higher resolution information that is more relevant to spatial scales used for analyses of a given species (see Glick et al. 2011, pp. 58-61, for a discussion of downscaling).

    With regard to our analysis for Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii, downscaled projections suggest that SLR is the largest climate-driven challenge to low-lying coastal areas in the subtropical ecoregion of southern Florida (U.S. Climate Change Science Program (USCCSP) 2008, pp. 5-31, 5-32). All populations of the four plants occur at elevations from 2.83-4.14 meters (m) (9.29-13.57 feet (ft)) above sea level, making these plants highly susceptible to increased storm surges and related impacts associated with SLR.

    We acknowledge that the drivers of SLR (especially contributions of melting glaciers) are not completely understood, and there is uncertainty with regard to the rate and amount of SLR. This uncertainty increases as projections are made further into the future. For this reason, we examine threats to the species within the range of projections found in recent climate change literature.

    The long-term record at Key West shows that sea level rose on average 0.229 cm (0.090 in) annually between 1913 and 2013 (National Oceanographic and Atmospheric Administration (NOAA) 2013, p. 1). This equates to approximately 22.9 cm (9.02 in) over the last 100 years. IPCC (2008, p. 28) emphasized it is very likely that the average rate of SLR during the 21st century will exceed the historical rate. The IPCC Special Report on Emission Scenarios (2000, entire) presented a range of scenarios based on the computed amount of change in the climate system due to various potential amounts of anthropogenic greenhouse gases and aerosols in 2100. Each scenario describes a future world with varying levels of atmospheric pollution leading to corresponding levels of global warming and corresponding levels of SLR. The IPCC Synthesis Report (2007, entire) provided an integrated view of climate change and presented updated projections of future climate change and related impacts under different scenarios.

    Subsequent to the 2007 IPCC Report, the scientific community has continued to model SLR. Recent peer-reviewed publications indicate a movement toward increased acceleration of SLR. Observed SLR rates are already trending along the higher end of the 2007 IPCC estimates, and it is now widely held that SLR will exceed the levels projected by the IPCC (Rahmstorf et al. 2012, p. 1; Grinsted et al. 2010, p. 470). Taken together, these studies support the use of higher end estimates now prevalent in the scientific literature. Recent studies have estimated global mean SLR of 1.0-2.0 m (3.3-6.6 ft) by 2100 as follows: 0.75-1.90 m (2.50-6.20 ft; Vermeer and Rahmstorf 2009, p. 21530); 0.8-2.0 m (2.6-6.6 ft; Pfeffer et al. 2008, p. 1342); 0.9-1.3 m (3.0-4.3 ft; Grinsted et al. 2010, pp. 469-470); 0.6-1.6 m (2.0-5.2 ft; Jevrejeva et al. 2010, p. 4); and 0.5-1.4 m (1.6-4.6 ft; National Research Council 2012, p. 2).

    Other processes expected to be affected by projected warming include temperatures, rainfall (amount, seasonal timing, and distribution), and storms (frequency and intensity) (see “Environmental Stochasticity”, above). Models where sea surface temperatures are increasing also show a higher probability of more intense storms (Maschinski et al. 2011, p. 148). The Massachusetts Institute of Technology (MIT) modeled several scenarios combining various levels of SLR, temperature change, and precipitation differences with human population growth, policy assumptions, and conservation funding changes. All of the scenarios, from small climate change shifts to major changes, indicate significant effects on coastal Miami-Dade County. The Science and Technology Committee of the Miami-Dade County Climate Change Task Force (Wanless et al. 2008, p. 1) recognize that significant SLR is a serious concern for Miami-Dade County in the near future. In a January 2008 statement, the committee warned that sea level is expected to rise at least 0.9-1.5 m (3.0-5.0 ft) within this century (Wanless et al. 2008, p. 3). With a 0.9-1.2 m (3.0-4.0 ft) rise in sea level (above baseline) in Miami-Dade County, spring high tides would be at about 1.83-2.13 m (6.0-7.0 ft); freshwater resources would be gone; the Everglades would be inundated on the west side of Miami-Dade County; the barrier islands would be largely inundated; storm surges would be devastating to coastal habitat and associated species; and landfill sites would be exposed to erosion, contaminating marine and coastal environments. Freshwater and coastal mangrove wetlands will be unable to keep up with or offset SLR of 0.61 m (2.0 ft) per century or greater. With a 1.52 m (5.0 ft) rise, Miami-Dade County will be extremely diminished (Wanless et al. 2008, pp. 3-4).

    SLR projections from various scenarios have been downscaled by TNC (2011, entire) and Zhang et al. (2011, entire) for the Florida Keys. Using the IPCC best-case, low-pollution scenario, a rise of 18 cm (7 in) (a rate close to the historical average reported above) would result in the inundation of 23,796 ha (58,800 acres) or 38.2 percent of the Florida Keys upland area by the year 2100 (TNC 2011, p. 25). Under the IPCC worst-case, high-pollution scenario, a rise of 59 cm (23.2 in) would result in the inundation of 46,539 ha (115,000 acres) or 74.7 percent of the Florida Keys upland area by the year 2100 (TNC 2011, p. 25). Using Rahmstorf et al.'s (2007; p. 368) SLR projections of 100 to 140 cm, 80.5 to 92.2 percent of the Florida Keys land area would be inundated by 2100. The Zhang et al. (2011, p. 136) study models SLR up to 1.8 m (5.9 ft) for the Florida Keys, which would inundate 93.6 percent of the current land area of the Keys.

    Prior to inundations from SLR, there will likely be habitat transitions related to climate change, including changes to hydrology and increasing vulnerability to storm surge. Hydrology has a strong influence on plant distribution in coastal areas (IPCC 2008, p. 57). Such communities typically grade from salt to brackish to freshwater species. From the 1930s to 1950s, increased salinity contributed to the decline of cabbage palm forests in southwest Florida (Williams et al. 1999, pp. 2056-2059), expansion of mangroves into adjacent marshes in the Everglades (Ross et al. 2000, pp. 101, 111), and loss of pine rocklands in the Keys (Ross et al. 1994, pp. 144, 151-155). In Florida, pine rocklands transition into rockland hammocks, and, as such, these habitat types are closely associated in the landscape. A study conducted in one pine rocklands location on Sugar Loaf Key (with an average elevation of 0.89 m (2.90 ft)) found an approximately 65 percent reduction in an area occupied by South Florida slash pine over a 70-year period, with pine mortality and subsequent increased proportions of halophytic (salt-loving) plants occurring earlier at the lower elevations (Ross et al. 1994, pp. 149-152). During this same time span, local sea level had risen by 15 cm (6 in), and Ross et al. (1994, p. 152) found evidence of groundwater and soil water salinization. Extrapolating this situation to hardwood hammocks is not straightforward, but it suggests that changes in rockland hammock species composition may not be an issue in the immediate future (5-10 years); however, over the long term (within the next 10-50 years), it may be an issue if current projections of SLR occur and freshwater inputs are not sufficient to maintain high humidities and prevent changes in existing canopy species through salinization (Saha et al. 2011, pp. 22-25). Ross et al. (2009, pp. 471-478) suggested that interactions between SLR and pulse disturbances (e.g., storm surges) can cause vegetation to change sooner than projected based on sea level alone.

    Impacts from climate change including regional SLR have been studied for coastal hammocks but not rockland hammock habitat. Saha (et al. 2011, pp. 24-25) conducted a risk assessment on rare plant species in ENP and found that impacts from SLR have significant effects on imperiled taxa. This study also predicted a decline in the extent of coastal hammocks with initial SLR, coupled with a reduction in freshwater recharge volume and an increase in pore water (water filling spaces between grains of sediment) salinity, which will push hardwood species to the edge of their drought (freshwater shortage and physiological) tolerance, jeopardizing critically imperiled or endemic species, or both, with possible extirpation. In south Florida, SLR of 1-2 m (3.3-6.6 ft) is estimated by 2100, which is on the higher end of global estimates for SLR. These projected increases in sea level pose a threat to coastal plant communities and habitats from mangroves at sea level to salinity-intolerant, coastal rockland hammocks where elevations are generally less than 2.0 m (6.1 ft) above sea level (Saha et al. 2011, p. 2). Loss or degradation of these habitats can be a direct result of SLR or in combination of several other factors, including diversion of freshwater flow, hurricanes, and exotic plant species infestations, which can ultimately pose a threat to rare plant populations (Saha et al. 2011, p. 24).

    Habitats for these species are restricted to relatively immobile geologic features separated by large expanses of flooded, inhospitable wetland or ocean, leading us to conclude that these habitats will likely not be able to migrate as sea level rises (Saha et al. 2011, pp. 103-104). Because of the extreme fragmentation of remaining habitat and isolation of remaining populations, and the accelerating rate at which SLR is projected to occur (Grinsted et al. 2010, p. 470), it will be particularly difficult for these species to disperse to suitable habitat once existing sites that support them are lost to SLR. Patterns of development will also likely be significant factors influencing whether natural communities can move and persist (IPCC 2008, p. 57; CCSP 2008, pp. 7-6). The plant species face significant risks from coastal squeeze that occurs when habitat is pressed between rising sea levels and coastal development that prevents landward migration of species. The ultimate effect of these impacts is likely to result in reductions in reproduction and survival, with corresponding decreases in population numbers.

    Saha (et al. 2011, p. 4) suggested that the rising water table accompanying SLR will shrink the vadose zone (the area which extends from the top of the ground surface to the water table); increase salinity in the bottom portion of the freshwater lens, thereby increasing brackishness of plant-available water; and influence tree species composition of coastal hardwood hammocks based upon species-level tolerance to salinity or drought or both. Evidence of population declines and shifts in rare plant communities, along with multi-trophic effects, already have been documented on the low-elevation islands of the Florida Keys (Maschinski et al. 2011, p. 148).

    Direct losses to extant populations of all four plants are expected due to habitat loss and modification from SLR by 2100. We analyzed existing sites that support populations of the four plants using the National Oceanic and Atmospheric Administration (NOAA) Sea Level Rise and Coastal Impacts viewer. Below, we discuss general implications of sea level rise within the range of projections discussed above on the current distribution of these species. The NOAA tool uses 1-foot increments, so the analysis is based on 0.91 m (3 ft) and 1.8 m (6 ft).

    Chamaecrista lineata var. keyensis: A 0.91-m (3-ft) rise would inundate most areas of Big Pine Key, and all areas of Cudjoe Key, that support Chamaecrista lineata var. keyensis, and reduce both Keys to several much smaller islands. The remaining uplands on these islands would likely transition to buttonwoods and saltmarshes, and would be extremely vulnerable to storm surge. This will further reduce and fragment these populations. A 1.8-m (6-ft) rise would completely inundate all areas that support C. lineata var. keyensis and eliminate all pine rocklands habitat within the historic range of the species.

    Chamaesyce deltoidea var. serpyllum: A 0.91-m (3-ft) rise would inundate most areas of Big Pine Key that support Chamaesyce deltoidea var. serpyllum, and reduce the Key to three to five much smaller islands. The remaining uplands would likely transition to buttonwoods and saltmarshes, and would be extremely vulnerable to storm surge. This will further reduce and fragment the population. A 1.8-m (6-ft) rise would completely inundate all areas that support C. deltoidea var. serpyllum and eliminate all pine rocklands habitat within the historic range of the species.

    Linum arenicola: In Miami-Dade County, a 0.91-m (3-ft) rise would inundate the area that supports a large extant population of Linum arenicola along L-31E canal. While other areas that support the species are located in higher elevation areas along the coastal ridge, changes in the salinity of the water table and soils, along with additional vegetation shifts in the region, are likely. Remaining uplands may transition to wetter, more salt-tolerant plant communities. This will further reduce and fragment the populations. A 1.8-m (6-ft) rise would inundate portions of the largest known population (HARB), as well the population along L-31E canal. The areas that support Linum arenicola at the Richmond pinelands to the north would not be inundated, but pine rocklands in these areas may be reduced through transition to wetter, more salt-tolerant plant communities, as discussed above.

    In the Florida Keys, a 0.91-m (3-ft) rise would inundate most areas of Big Pine Key and Lower Sugarloaf Key, and all of the areas on Upper Sugarloaf Key and Big Torch Key, that support Linum arenicola, and reduce these Keys to numerous much smaller islands. The remaining uplands on these small islands would likely transition to buttonwoods and saltmarshes, and would be extremely vulnerable to further losses due to storm surge. This would further reduce and fragment the populations. A 1.8-m (6-ft) rise would completely inundate all areas that support Linum arenicola in the Florida Keys and eliminate all pine rocklands habitat within the historic range of the species in Monroe County.

    Argythamnia blodgettii: In Miami-Dade County, a 0.91-m (3-ft) rise would not inundate any extant populations of Argythamnia blodgettii because these habitats are located in higher elevation areas along the coastal ridge. However, changes in the salinity of the water table and soils, along with additional vegetation shifts in the region, are likely. Remaining uplands may likely transition to wetter, more salt-tolerant plant communities. This will further reduce and fragment the populations. A 1.8-m (6-ft) rise would inundate portions of Crandon Park, making it unsuitable for A. blodgettii. Other areas that support A. blodgettii, including the Richmond pinelands to the north, and Long Pine Key in ENP, would not be inundated, but habitats in these areas may be reduced through transition to wetter, more salt-tolerant plant communities, as discussed above.

    In the Florida Keys, a 0.91-m (3-ft) rise would reduce the area of islands in the upper Keys, but extant populations on Key Largo, Windley Key, and Lignumvitae Key are less vulnerable than the Middle and Lower Keys, which are at lower elevations. Lower Matecumbe Key, Plantation Key, Vaca Key, Big Pine Key, and Big Munson Island would be fragmented and reduced to numerous much smaller islands. The remaining uplands on these small islands would likely transition to buttonwoods and saltmarshes, and would be extremely vulnerable further losses to storm surge. This would further reduce and fragment the populations. A 1.8-m (6-ft) rise would completely inundate all areas that support Argythamnia blodgettii south of Lignumvitae Key. Key Largo, Windley Key, and Lignumvitae Key are the only existing areas supporting extant populations that could continue to support a population given a 1.8-m (6-ft) sea level rise.

    Conservation Efforts To Reduce Other Natural or Manmade Factors Affecting Its Continued Existence

    NPS, the Service, Miami-Dade County, and the State of Florida have ongoing nonnative plant management programs to reduce threats on public lands, as funding and resources allow. In Miami-Dade County, nonnative, invasive plant management is very active, with a goal to treat all publicly owned properties at least once a year and more often in many cases. IRC and FTBG conduct research and monitoring in various natural areas within Miami-Dade County and the Florida Keys for various endangered plant species and nonnative, invasive species.

    Summary of Factor E

    We have analyzed threats from other natural or manmade factors including: Nonnative, invasive plants; management practices used on roadsides and disturbed sites (such as mowing, sodding, and herbicide use); pesticide spraying and its effects on pollinators; environmental stochasticity; effects from small population size and isolation; and the effects of climate change, including SLR. The related risks from hurricanes and storm surge act together to impact populations of all four plants. Some of these threats (e.g., nonnative species) may be reduced on public lands due to active programs by Federal, State, and county land managers. Many of the remaining populations of these plants are small and geographically isolated, and genetic variability is likely low, increasing the inherent risk due to overall low resilience of these plants.

    Cumulative Effects of Threats

    When two or more threats affect populations of the four plants, the effects of those threats could interact or become compounded, producing a cumulative adverse effect that is greater than the impact of either threat alone. The most obvious cases in which cumulative adverse effects would be significant are those in which small populations (Factor E) are affected by threats that result in destruction or modification of habitat (Factor A). The limited distributions and small population sizes of many populations of the four plants make them extremely susceptible to the detrimental effects of further habitat modification, degradation, and loss, as well as other anthropogenic threats. Mechanisms leading to the decline of the four plants, as discussed above, range from local (e.g., agriculture) to regional (e.g., development, fragmentation, nonnative species) to global (e.g., climate change, SLR) influences. The synergistic effects of threats, such as impacts from hurricanes on a species with a limited distribution and small populations, make it difficult to predict population viability. While these stressors may act in isolation, it is more probable that many stressors are acting simultaneously (or in combination) on populations of these four plants, making them more vulnerable.

    Determination

    We have carefully assessed the best scientific and commercial data available regarding the past, present, and future threats to Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii. Numerous populations of all four plants have been extirpated from these species' historical ranges, and the primary threats of habitat destruction and modification resulting from human population growth and development, agricultural conversion, and inadequate fire management (Factor A); competition from nonnative, invasive species (Factor E); changes in climatic conditions, including SLR (Factor E); and natural stochastic events (Factor E) remain threats for existing populations. Existing regulatory mechanisms have not led to a reduction or removal of threats posed to the four plants from these factors (see Factor D discussion, above). These threats are ongoing, rangewide, and expected to continue in the future. A significant percentage of populations of Chamaecrista lineata var. keyensis, Linum arenicola, and Argythamnia blodgettii are relatively small and isolated from one another, and their ability to recolonize suitable habitat is unlikely without human intervention, if at all. The threats have had and will continue to have substantial adverse effects on the four plants and their habitats. Although attempts are ongoing to alleviate or minimize some of these threats at certain locations, all populations appear to be impacted by one or more threats.

    The Act defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as “any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” As described in detail above, Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, and Linum arenicola are currently at risk throughout all of their range due to the immediacy, severity, significance, timing, and scope of those threats. Impacts from these threats are ongoing and increasing; singly or in combination, these threats place these three plants in danger of extinction. The risk of extinction is high because the populations are small, are isolated, and have limited to no potential for recolonization. Numerous threats are currently ongoing and are likely to continue in the foreseeable future, at a high intensity and across the entire range of these plants. Furthermore, natural stochastic events and changes in climatic conditions pose a threat to the persistence of these plants, especially in light of the fact these events cannot be controlled and mitigation measures have yet to be addressed. Individually and collectively, all these threats can contribute to the local extirpation and potential extinction of these plant species. Because these threats are placing them in danger of extinction throughout their ranges, we have determined that each of these three plants meets the definition of an endangered species throughout their ranges.

    Throughout its range, Argythamnia blodgettii faces threats similar to the other three plant species that are the subjects of this rule. However, we find that endangered species status is not appropriate for A. blodgettii. While we have evidence of threats under Factors A, D, and E affecting the species, insufficient data are available to identify the trends in extant populations. Twenty populations are extant, 15 are extirpated, and we are uncertain of the status of 15 populations that have not been surveyed in 15 years or more. Additionally, data show that the threat of habitat loss from sea level rise is not as severe for this species. Also, A. blodgettii is likely less vulnerable because of the larger number of sites where it occurs throughout Miami-Dade and Monroe Counties. Further, A. blodgettii is the only one of the four plants species that occurs in ENP, where a population of over 2,000 plants is stable and where prescribed fire and other management activities that benefit A. blodgettii are conducted on a regular basis. Therefore, based on the best available information,

    Significant Portion of the Range (SPR)

    Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. The threats to the survival of Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii occur throughout these species' ranges and are not restricted to any particular significant portion of those ranges. Accordingly, our assessment and determination applies to each of the four plants throughout its entire range. Because we have determined that Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, and Linum arenicola meet the definition of endangered species, and Argythamnia blodgettii meets the definition of a threatened species, throughout their ranges, no portion of their ranges can be “significant” for purposes of the definitions of “endangered species” and “threatened species.” See the Service's SPR Policy (79 FR 37578; July 1, 2014).

    Therefore, on the basis of the best available scientific and commercial information, we list Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, and Linum arenicola as endangered species in accordance with sections 3(6) and 4(a)(1) of the Act. We find that threatened species status is not appropriate for Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, and Linum arenicola because of the contracted range of each species and because the threats are occurring rangewide, are ongoing, and are expected to continue into the future. We find that A. blodgettii is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range, and we list the species as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.

    Available Conservation Measures

    Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies; private organizations; and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.

    The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.

    Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for downlisting or delisting, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. If these four plant species are listed, a recovery outline, draft recovery plan, and the final recovery plan will be available on our Web site (http://www.fws.gov/endangered), or from our South Florida Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (e.g., restoration of native vegetation), research, captive propagation and reintroduction, and outreach and education. The recovery of many listed species cannot be accomplished solely on Federal lands because their range may occur primarily or solely on non-Federal lands. To achieve recovery of these species requires cooperative conservation efforts on private, State, and Tribal lands. If these four plant species are listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Florida would be eligible for Federal funds to implement management actions that promote the protection or recovery of the four plants. Information on our grant programs that are available to aid species recovery can be found at: http://www.fws.gov/grants.

    Please let us know if you are interested in participating in recovery efforts for Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii. Additionally, we invite you to submit any new information on these plants whenever it becomes available and any information you may have for recovery planning purposes (see FOR FURTHER INFORMATION CONTACT).

    Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, if designated, the responsible Federal agency must enter into consultation with the Service.

    Federal agency actions within the species' habitat that may require consultation as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the Service, NPS, and Department of Defense; issuance of section 404 Clean Water Act (33 U.S.C. 1251 et seq.) permits by the U.S. Army Corps of Engineers; construction and management of gas pipeline and power line rights-of-way by the Federal Energy Regulatory Commission; construction and maintenance of roads or highways by the Federal Highway Administration; and disaster relief efforts conducted by the Federal Emergency Management Agency.

    With respect to endangered plants, prohibitions outlined at 50 CFR 17.61 make it illegal for any person subject to the jurisdiction of the United States to import or export, transport in interstate or foreign commerce in the course of a commercial activity, sell or offer for sale in interstate or foreign commerce, or to remove and reduce to possession any such plant species from areas under Federal jurisdiction. In addition, for endangered plants, the Act prohibits malicious damage or destruction of any such species on any area under Federal jurisdiction, and the removal, cutting, digging up, or damaging or destroying of any such species on any other area in knowing violation of any State law or regulation, or in the course of any violation of a State criminal trespass law. Exceptions to these prohibitions are outlined at 50 CFR 17.62. With respect to threatened plants, 50 CFR 17.71 provides that, with certain exceptions, all of the prohibitions outlined at 50 CFR 17.61 for endangered plants also apply to threatened plants. Permit exceptions to the prohibitions for threatened plants are outlined at 50 CFR 17.72.

    Preservation of native flora of Florida through Florida Statutes 581.185, sections (3)(a) and (3)(b), provide limited protection to species listed in the State of Florida Regulated Plant Index including Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii, as described under the Factor D discussion, above. Federal listing will increase protection for these plants by making violations of section 3 of the Florida Statute punishable as a Federal offense under section 9 of the Act. This would provide increased protection from unauthorized collecting and vandalism for the plants on State and private lands, where they might not otherwise be protected by the Act, and would increase the severity of the penalty for unauthorized collection, vandalism, or trade in these plants.

    The Service acknowledges that it cannot fully address some of the natural threats facing Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii, (e.g., hurricanes, storm surge) or even some of the other significant, long-term threats (e.g., climatic changes, SLR). However, through listing, we can provide protection to the known populations and any new population of these plants that may be discovered (see discussion below). With listing, we can also influence Federal actions that may potentially impact these plants (see discussion below); this is especially valuable if these plants are found at additional locations. With listing, we will also be better able to deter illicit collection and trade.

    We may issue permits to carry out otherwise prohibited activities involving endangered or threatened plants under certain circumstances. Regulations governing permits for endangered plants are codified at 50 CFR 17.62, and for threatened plants at 50 CFR 17.72. With regard to endangered plants, the Service may issue a permit authorizing any activity otherwise prohibited by 50 CFR 17.61 for scientific purposes or for enhancing the propagation or survival of endangered plants.

    It is our policy, as published in the Federal Register on July 1, 1994 (59 FR 34272), to identify to the maximum extent practicable at the time a species is proposed for listing or listed, those activities that would or would not constitute a violation of section 9 of the Act. The intent of this policy is to increase public awareness of the effect of a final listing on proposed and ongoing activities within the range of the species. Based on the best available information, the following actions may potentially result in a violation of section 9, of the Act; this list is not comprehensive:

    (1) Import any such species into, or export any of the four plant species from, the United States.

    (2) Remove and reduce to possession any of the four plant species from areas under Federal jurisdiction; maliciously damage or destroy any of the four plant species on any such area; or remove, cut, dig up, or damage or destroy any of the four plant species on any other area in knowing violation of any law or regulation of any State or in the course of any violation of a State criminal trespass law.

    (3) Deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of a commercial activity, any of the four plant species.

    (4) Sell or offer for sale in interstate or foreign commerce any of the four plant species.

    (5) Introduce any nonnative wildlife or plant species to the State of Florida that compete with or prey upon Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, or Argythamnia blodgettii.

    (6) Release any unauthorized biological control agents that attack any life stage of Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, or Argythamnia blodgettii.

    (7) Manipulate or modify, without authorization, the habitat of Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, or Argythamnia blodgettii on Federal lands.

    Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Field Supervisor of the Service's South Florida Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Requests for copies of regulations regarding listed species and inquiries about prohibitions and permits should be addressed to the U.S. Fish and Wildlife Service, Ecological Services Division, Endangered Species Permits, 1875 Century Boulevard, Atlanta, GA 30345 (phone 404-679-7140; fax 404-679-7081).

    When Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii are listed under the Act, the State of Florida's Endangered Species Act (Florida Statutes 581.185) is automatically invoked, which also prohibits take of these plants and encourages conservation by State government agencies. Further, the State may enter into agreements with Federal agencies to administer and manage any area required for the conservation, management, enhancement, or protection of endangered species (Florida Statutes 581.185). Funds for these activities can be made available under section 6 of the Act (Cooperation with the States). Thus, the Federal protection afforded to these plants by listing them as endangered species will be reinforced and supplemented by protection under State law.

    Activities that the Service believes could potentially harm these four plants include, but are not limited to:

    (1) Actions that would significantly alter the hydrology or substrate, such as ditching or filling. Such activities may include, but are not limited to, road construction or maintenance, and residential, commercial, or recreational development.

    (2) Actions that would significantly alter vegetation structure or composition, such as clearing vegetation for construction of residences, facilities, trails, and roads.

    (3) Actions that would introduce nonnative species that would significantly alter vegetation structure or composition. Such activities may include, but are not limited to, residential and commercial development, and road construction.

    (4) Application of herbicides, or release of contaminants, in areas where these plants occur. Such activities may include, but are not limited to, natural resource management, management of rights-of-way, residential and commercial development, and road construction.

    Critical Habitat

    Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed upon a determination by the Secretary of the Interior that such areas are essential for the conservation of the species. Section 3(3) of the Act defines conservation as to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary.

    Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary will designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist:

    (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or

    (2) Such designation of critical habitat would not be beneficial to the species.

    In our proposed listing rule, we determined that because the designation of critical habitat will not likely increase the degree of threat to the species and may provide some measure of benefit, the designation of critical habitat is prudent for Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii.

    Our regulations (50 CFR 424.12(a)(2)) further state that critical habitat is not determinable when one or both of the following situations exists: (1) Information sufficient to perform required analysis of the impacts of the designation is lacking; or (2) the biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat. On the basis of a review of available information, we find that critical habitat for Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii is not determinable because the specific mapping and economic information sufficient to perform the required analysis of the impacts of the designation is currently lacking. We are still in the process of obtaining more information needed to properly evaluate the economic impacts of designation. We intend to publish a proposed rule designating critical habitat for Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, Linum arenicola, and Argythamnia blodgettii by the end of fiscal year 2017.

    Required Determinations National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

    References Cited

    A complete list of references cited in this rulemaking is available on the Internet at http://www.regulations.gov and upon request from the South Florida Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Authors

    The primary authors of this final rule are the staff members of the South Florida Ecological Services Field Office.

    List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

    Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as follows:

    PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.

    2. Amend § 17.12(h) by adding entries for Argythamnia blodgettii, Chamaecrista lineata var. keyensis, Chamaesyce deltoidea ssp. serpyllum, and Linum arenicola, in alphabetical order under FLOWERING PLANTS, to the List of Endangered and Threatened Plants to read as follows:
    § 17.12 Endangered and threatened plants.

    (h) * * *

    Scientific name Common name Where listed Status Listing citations and
  • applicable rules
  • Flowering Plants *         *         *         *         *         *         * Argythamnia blodgettii Blodgett's silverbush Wherever found T [Insert Federal Register citation]; September 29, 2016. *         *         *         *         *         *         * Chamaecrista lineata var. keyensis Big Pine partridge pea Wherever found E [Insert Federal Register citation]; September 29, 2016. *         *         *         *         *         *         * Chamaesyce deltoidea ssp. serpyllum Wedge spurge Wherever found E [Insert Federal Register citation]; September 29, 2016. *         *         *         *         *         *         * Linum arenicola Sand flax Wherever found E [Insert Federal Register citation]; September 29, 2016. *         *         *         *         *         *         *
    Dated: September 21, 2016. Stephen Guertin, Acting Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2016-23546 Filed 9-28-16; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 151130999-6225-01] RIN 0648-XE895 Fisheries of the Northeastern United States; Atlantic Bluefish Fishery; Quota Transfer AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Temporary rule; approval of quota transfer.

    SUMMARY:

    NMFS announces its approval of a transfer of a portion of the 2016 commercial bluefish quota from the State of North Carolina to the Commonwealth of Massachusetts. This approval of the transfer complies with the Atlantic Bluefish Fishery Management Plan quota transfer provision. This announcement also informs the public of the revised commercial quotas for North Carolina and Massachusetts.

    DATES:

    Effective September 28, 2016, through December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Reid Lichwell, Fishery Management Specialist, (978) 281-9112.

    SUPPLEMENTARY INFORMATION:

    Regulations governing the Atlantic bluefish fishery are found in 50 CFR 648.160 through 648.167. The regulations require annual specification of a commercial quota that is apportioned among the coastal states from Maine through Florida. The process to set the annual commercial quota and the percent allocated to each state are described in § 648.162.

    The final rule implementing Amendment 1 to the Bluefish Fishery Management Plan published in the Federal Register on July 26, 2000 (65 FR 45844), and provided a mechanism for transferring bluefish quota from one state to another. Two or more states, under mutual agreement and with the concurrence of the Administrator, Greater Atlantic Region, NMFS (Regional Administrator), can request approval of a transfer of bluefish commercial quota under § 648.162(e)(1)(i) through (iii). The Regional Administrator must first approve any such transfer based on the criteria in § 648.162(e).

    North Carolina and Massachusetts have requested the transfer of 75,000 lb (34,019 kg) of bluefish commercial quota from North Carolina to Massachusetts. Both states have certified that the transfer meets all pertinent state requirements. This quota transfer was requested by Massachusetts to ensure that its 2016 quota would not be exceeded. The Regional Administrator has approved this quota transfer based on his determination that the criteria set forth in § 648.162(e)(1)(i) through (iii) have been met. The revised bluefish quotas for calendar year 2016 are: North Carolina, 1,391,100 lb (630,992 kg); and Massachusetts, 553,096 lb (250,880 kg). These quota adjustments revise the quotas specified in the final rule implementing the 2016-2018 Atlantic Bluefish Specifications published on August 4, 2016 (81 FR 51370), and reflect all subsequent commercial bluefish quota transfers completed to date. For information of previous transfers for fishing year 2016 visit: http://go.usa.gov/xZT8H.

    Classification

    This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-23469 Filed 9-28-16; 8:45 am] BILLING CODE 3510-22-P
    81 189 Thursday, September 29, 2016 Proposed Rules DEPARTMENT OF AGRICULTURE Food and Nutrition Service 7 CFR Parts 271 and 274 RIN 0584-AE02 Supplemental Nutrition Assistance Program: 2008 Farm Bill Provisions on Clarification of Split Issuance; Accrual of Benefits and Definition Changes AGENCY:

    Food and Nutrition Service, USDA.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Food and Nutrition Service (FNS) is proposing changes to the Supplemental Nutrition Assistance Program (SNAP) issuance regulations in accordance with the Food, Conservation and Energy Act of 2008, Public Law 110-234 (“the 2008 Farm Bill”). The proposal would implement several provisions of the 2008 Farm Bill to: Clarify that monthly SNAP benefits must be issued in one lump sum; require SNAP accounts to be inactive for a minimum of 6 months before taking benefits off-line; require benefits taken off-line to be restored within 48 hours of the recipient's request; and require permanent expungement of unused benefits after 12 months of account inactivity. This proposal also addresses the requirement to notify households when benefits are taken off-line. Finally, FNS is updating SNAP definitions in 7 CFR part 271, to reflect the Program's new name and the issuance of benefits through Electronic Benefit Transfer (EBT) systems.

    DATES:

    Written comments must be received on or before November 28, 2016 to be assured of consideration.

    ADDRESSES:

    The Food and Nutrition Service, USDA, invites interested persons to submit comments on this proposed rule. Comments may be submitted by one of the following methods:

    Federal e-Rulemaking Portal: Go to http://www.regulations.gov. Preferred method; follow the on-line instructions for submitting comments.

    Mail: Comments should be addressed to Vicky T. Robinson, Chief, Retailer Management and Issuance Branch, Retailer Policy and Management Division, Rm. 418, 3101 Park Center Drive, Alexandria, Virginia 22302.

    This proposed rule would codify and clarify certain technical, operational aspects to States related to benefit issuance. It also requests comment about proposed interpretation of taking benefits off line and expunging benefits. All comments submitted in response to this proposed rule will be included in the record and will be made available to the public. Please be advised that the substance of the comments and the identity of the individuals or entities submitting the comments will be subject to public disclosure. FNS will make the comments publicly available on the Internet via http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Vicky Robinson, Chief, Retailer Management and Issuance Branch, Retailer Policy and Management, Rm. 418, 3101 Park Center Drive, Alexandria, Virginia 22302, or by phone at 703-305-2476.

    SUPPLEMENTARY INFORMATION: Background

    Sections 4113 (Clarification of Split Issuance) and 4114 (Accrual of Benefits) of the 2008 Farm Bill amended section 7 of the Food and Nutrition Act of 2008 (7 U.S.C. 2016) (“the Food and Nutrition Act”), which pertains to SNAP benefit issuance. In addition, section 4001 updated the language in the Food and Nutrition Act to reflect the Program's name change from the Food Stamp Program to the Supplemental Nutrition Assistance Program (SNAP), and section 4115 de-obligated coupons as of June 18, 2009, and made EBT cards the sole method of benefit delivery.

    This rulemaking proposes to implement the 2008 Farm Bill amendments to the Food and Nutrition Act, and to update the general information and definitions of 7 CFR part 271 to reflect the Program's new name and issuance of benefits through EBT systems. The elimination of all other benefit delivery options was addressed in the “Regulation Restructuring: Issuance Regulation Update and Reorganization to Reflect the End of Coupon Issuance Systems” rule published in final at 75 FR 18377 on April 12, 2010, which became effective on June 11, 2010. The 2008 Farm Bill provisions addressed in this Proposed Rule were implemented through FNS implementing memo on October 1, 2008.

    7 CFR Part 271—General Information and Definitions

    FNS is proposing to add new definitions associated with the current EBT issuance system and to update the terminology in 7 CFR part 271, to reflect the program's new name and the elimination of coupons. Furthermore, FNS proposes to change the definition of “Drug addiction or alcoholic treatment and rehabilitation program” to be consistent with current policy, which does not require programs to be eligible to receive funding under Part B of title XIX of the Public Health Service Act (42 U.S.C. 300x et seq.) in order to redeem SNAP benefits. Programs that receive funding under part B of title XIX, programs that are eligible to receive funding but do not actually receive funding under part B of title XIX, and programs that are not eligible to receive funding but operate to further the purposes of part B of title XIX to provide treatment to drug addicts and or alcoholics, are all eligible. None of the changes to part 271 would have any policy implications.

    7 CFR Part 274—Issuance and Use of Program Benefits

    The general provisions proposed in part 274 are statutorily required by the Food and Nutrition Act. These provisions were administratively implemented on October 1, 2008, via an FNS implementation memo, but would be codified with this proposed rule. The discussion below and the subsequent regulatory language for this part provide additional details to address operational processes and/or clarify current policy. Where FNS is also proposing changes to current processes, it is so noted.

    Split Issuance

    Prior to the 2008 Farm Bill, some State agencies had received strong interest from stakeholders to divide each individual household's monthly allotment into two or more issuances over the month. Up to that point, no State had ever split households' benefit allotments. While not explicitly prohibiting splitting the issuance of monthly allotments, the current SNAP regulations are based on a one-time issuance per month for ongoing benefits with 7 CFR 274.2(d) stating that “all households shall be placed on an issuance schedule so that they receive their benefits on or about the same date each month.”

    The purpose of splitting benefit allotments, according to retail industry proponents, would be to help authorized SNAP stores better manage their food stock, employee hours and traffic flow. Proponents have also suggested that it would ensure that SNAP participants spread their benefit spending over the course of the month instead of depleting the entire allotment early on and not having sufficient funds to meet their nutritional needs as the end of the month approaches. However, section 4113 of the 2008 Farm Bill now requires that State agencies issue a household's ongoing monthly benefit allotment in one lump sum. Proponents of the one issuance per month limitation have argued that requiring the entire monthly benefit allotment to be issued at one time allows households to make large buying trips and to purchase large, economy-size containers of staple foods. It also allows households with small benefit amounts—such as seniors or those with limited transportation options—to make one shopping trip during the month.

    To address retailer concerns regarding monthly spikes in traffic flow, State agencies have the option to stagger the issuance of benefits to individual households over multiple days of the month in accordance with 7 CFR 274.2(d)(1). Staggered issuance, in this context, means issuing benefits to a group of SNAP recipients on one date of a month, and issuing benefits to another group of recipients on a different date of the month, and so on, so that all SNAP recipients in the State are not receiving their monthly allotment and shopping on the same day. Staggered issuance allows authorized SNAP stores to manage better their food stock, employee hours and traffic flow, while still allowing recipients to make bulk purchases and/or limit their shopping trips to once per month. When a State agency changes its issuance schedule to institute or expand a staggered issuance schedule, State agencies would continue to have the option to divide the issuances into two parts during the transition month to meet the requirement that no more than 40 days elapses between the issuance of any two allotments provided to a household participating longer than two consecutive, complete months. In general, the prohibition against splitting ongoing monthly issuances is not intended to change policy or practice with respect to the issuance of benefits in any other area, including expedited benefits, the proration of benefits for partial months, the issuance of supplemental benefits in the event a benefit correction is necessary, or the option to issue benefits semimonthly to residents of drug or alcohol addiction treatment facilities.

    This provision would be codified at 7 CFR 274.2(c).

    Benefit Expungement

    Under the previous food stamp coupon issuance system, paper coupons did not have an expiration date. Households could accumulate an unlimited amount of benefits in the form of paper coupons and spend them at any time in the future, until the 2008 Farm Bill de-obligated all food stamp coupons as of June 2009. Currently under EBT, consistent with section 4115 of the 2008 Farm Bill, benefits are expunged (permanently removed) from inactive accounts if the account has been inactive for one year. Current policy considers an account active if the household initiates an action that affects the balance of the account, such as a purchase or refund, at least once every 12 months. As long as the account is active, States are not allowed to expunge any benefits even if there are benefits in the account that were issued more than 12 months ago. Only when the account has been inactive for 12 months, may State agencies begin to permanently remove benefits from a household's account at the benefit allotment level. This policy and approach to expungement was in place through regulations prior to the 2008 Farm Bill.

    The 2008 Farm Bill requires State agencies to establish a procedure for recovering electronic benefits from a household's account due to inactivity and to expunge benefits that have not been accessed by a household after a period of 12 months. Because expungement has been a regulatory requirement since the beginning of EBT implementation, all State agencies already have a process in place for expunging benefits from a household's EBT account due to inactivity. Furthermore, the 2008 Farm Bill implementation memo issued on July 3, 2008, maintained the current expungement process outlined in the previous paragraph. However, after further review of the statutory language, FNS has determined that there is sufficient ambiguity in the language to allow for two different interpretations.

    Section 7(h)(12)(C) of the Food and Nutrition Act reads, “A State agency shall expunge benefits that have not been accessed by a household after a period of 12 months.” This language could be interpreted to support SNAP's current expungement policy (interpretation #1) of only expunging benefits from EBT accounts that have not been accessed in 12 months (i.e., inactive accounts). This interpretation focuses on the account referenced in section 7(h)(12)(A) of the statute, which requires State agencies to establish a procedure for recovering electronic benefits from the account of a household due to inactivity. Another interpretation (interpretation #2) could be that benefits that have not been used after 12 months must be expunged regardless of whether the household has accessed the account (i.e., regardless of account activity).

    Since the 2008 Farm Bill passed, FNS has received feedback from some States in support of the second interpretation. This support emphasizes that SNAP households should be prevented from accumulating excessively high balances in their SNAP EBT accounts. High balances, some States have indicated, do not align with the true intent of the program, and hold taxpayer money inactive that could otherwise be spent in a beneficial way. As a result, FNS is requesting comments through this proposed rulemaking to obtain further feedback from State agencies as well as other stakeholders, such as advocates and EBT processors, regarding the possibility of changing the current expungement process to reflect a process in line with interpretation #2.

    Under interpretation #2, FNS is particularly interested in receiving comments on how to address a scenario in which a household receives restored benefits for multiple months in one lump sum as a result of a fair hearing finding. This is one possible reason a household might have a large SNAP balance. FNS understands that, in these types of situations, a household would have a shorter period of time overall to spend the restored benefits they were entitled to receive for previous months than would have been the case if the benefits were provided monthly as originally required. The restored benefits would be in addition to any ongoing benefits the household is receiving, which must also be spent within 12 months. However, FNS is also sensitive to the automated system processes that would be impacted if it instituted exceptions to a requirement that State agencies expunge unused benefits 12 months after they were issued.

    In addition to comments on each of the two expungement policy interpretations, FNS is also interested in receiving comments on whether every State agency should be given the option to choose one of the two expungement processes discussed here. Therefore, both expungement processes (i.e. expunging unused benefits after one year of account inactivity or expunging unused benefits one year after each allotment is issued) would be allowed, giving each State agency the flexibility to choose which process to implement.

    Respondents who support the second alternative (i.e. expunging unused benefits one year after each allotment is issued), either as mandatory or as an option, should also provide comments regarding household notification of the new expungement policy and suggested effective dates. For example, would an effective date of one year after the final rule's publication date be a suitable timeframe for providing notice to clients that unused benefits over 12 months old will be permanently expunged or should the timeframe be longer or shorter and why?

    To summarize: Under interpretation #1, SNAP benefits would only be expunged if the account has been inactive for 12 months. As long as the account is active, no benefits would be expunged regardless of when the benefits were issued, and benefits could continue to accumulate as long as the household remains eligible for benefits. Under interpretation #2, households would have 12 months from the date of issuance to spend each benefit allotment they receive even if the household is accessing the account and using benefits.

    In this proposed rule, the proposed regulatory language is in line with the 2008 Farm Bill Implementation Memo, which mirrored current policy of expunging benefits only from inactive EBT accounts. Final language will take into consideration the comments received regarding both possible expungement interpretations discussed above.

    This rulemaking also proposes to codify the current policy of requiring State agencies to expunge benefits at the benefit allotment level. In other words, the entire balance of a SNAP EBT account could not be permanently removed due to inactivity if there are benefit allotments that have not been available to the household for at least 12 months. Instead, the State would need to wait 12 months from the date when each benefit allotment was issued to the household or from the last date of account activity, whichever date is later, before expunging those particular funds.

    Furthermore, to ensure that benefits are not available to the household longer than allowed by statute, FNS is proposing to require State agencies to expunge benefits from the EBT system or, if offline, from the State records on a daily basis.

    This proposed rule also clarifies that the expungement timeframe requirement would not apply to cases that have been closed due to the death of all household members. In most cases, this provision would apply to one-person households. Once the State agency has confirmed a death match and closed the case in accordance with 7 CFR 272.14, there is no one left in the household who is entitled to the benefits. In such cases, State agencies would be required to permanently expunge all SNAP benefits in the household's account regardless of when the benefits were issued or last used. This provision would prevent unauthorized persons from accessing and using benefits that remain in a deceased household's account. For all other SNAP cases, benefits would continue to remain in the SNAP account even after the SNAP case is closed (unless taken off-line due to inactivity as discussed below) until the benefits have aged off in accordance with expungement requirements.

    This provision would be codified at 7 CFR 274.2(h)(2).

    Moving Benefits Off-Line

    Prior to the 2008 Farm Bill, EBT regulations allowed State agencies to move all benefits in an inactive SNAP account off-line if the account had not been accessed over a three-month period. Once benefits are taken off-line, they are no longer immediately accessible to the household, but must be reinstated if the household reapplies for the program or requests that the remaining benefits be moved back on-line prior to expungement. However, some households, especially seniors who qualify for a small amount of benefits, have been known to save up those smaller amounts and use several months' worth in one shopping trip. For these households, three months may have been too short a period before moving benefits off-line. As a result, section 4114 of the 2008 Farm Bill stipulated 6 months as the time period that an EBT account must be inactive before a State agency may move benefits off-line. State agencies are not required to take inactive benefits off-line at all prior to expungement, but if a State agency wishes to exercise the option to do so, it must wait until an EBT account has been inactive for at least 6 months. In accordance with the July 3, 2008, implementing memo, this provision was implemented on October 1, 2008.

    Because “off-line” was not previously defined in regulations, FNS is taking this opportunity to propose such a definition. The off-line definition would not impact a client's ability to get benefits reinstated, or the timeframes. The definition serves only to provide State agencies and EBT processors the parameters for operationalizing the off-line provision. FNS welcomes comments regarding the impact this definition would have on State agencies' EBT issuance systems.

    Going forward, taking benefits “off-line” would mean that the benefits are being removed from the EBT account and the EBT system. Moreover, this regulation proposes that, when taking benefits off-line, from a financial management perspective, the EBT contractor treat these benefits like expungements by removing benefits from the Account Management Agent (AMA). The AMA is an accounting system that interfaces with the U.S. Department of Treasury to keep track of benefit authorizations, returned benefits such as expungements, and benefit redemptions. However, unlike a permanent expungement, information about the benefits (amount, availability date, last used date, etc.) would be stored elsewhere so that the benefits can be reissued upon timely contact by the household.

    The law does not allow State agencies to make SNAP benefits in an inactive EBT account inaccessible to a client prior to expungement, unless they exercise the option to store benefits off-line within the permitted timeframes. Therefore, under the proposed definition of “off-line”, State agencies would no longer be able to flag an account as “dormant” or otherwise deactivate the account to make benefits inaccessible to the client, and yet keep the benefits on-line. FNS is proposing this limitation because such a practice would defeat the logic of the original regulation that permitted benefits to be moved off-line. When the original regulation to allow State agencies to take benefits off-line was implemented, the increased computer system capacity needed to maintain all EBT accounts on-line was more expensive than it is now. By taking inactive EBT accounts off-line, the goal was to reduce the overall cost of EBT services. The incremental cost of additional system capacity, however, is now considerably less expensive. Therefore, the financial motives for moving benefits off-line are no longer a significant factor. Nevertheless, some State agencies are choosing to make benefits inaccessible after a period of inactivity in order to establish contact with the household and verify continued eligibility. FNS believes this is contrary to the intent of the law. Therefore, as noted above, this rule would no longer permit the practice of simply making benefits inaccessible without actually moving them off-line. Furthermore, by taking the benefits out of the EBT system, this provision would provide additional system security by preventing unauthorized persons from accessing and using accumulated benefits that remain dormant in a household's account. State agencies would still be able to flag a household's EBT account at various stages of inactivity for monitoring purposes, but the benefits would need to remain accessible to the household unless moved off-line or permanently expunged.

    Section 4114 of the 2008 Farm Bill also requires State agencies to send a notice to the household when the household's benefits are taken off-line and to make the benefits available again within 48 hours of the household's request. The Congressional intent, as stipulated in the Congressional record, was that notification be closely tied to the date benefits would move off-line. Therefore, this rule proposes in 273.2(h)(1) to allow States to choose when to provide notification as long as it is within 10 days prior to or concurrent with moving benefits off-line. Although not required, some State agencies may want to give clients sufficient notice to access the account to prevent benefits from being taken off-line altogether. Because individual off-line notification is now a statutory requirement, State agencies may no longer receive a waiver to provide general off-line notification as part of initial training or recertification. Inactive accounts with a zero balance that are taken off-line do not require a notice because no actual benefits are made inaccessible to the household.

    As already required at 7 CFR 274.2(h)(1), the notice must describe the steps necessary to bring the recovered benefits back on-line. State agencies should make the process for reinstating off-line benefits simple for households. A general request for assistance from a household that has had benefits moved off-line should be considered a request for reinstatement of benefits. In other words, households should not have to follow a complicated reinstatement option in order to get benefits restored to their accounts. Rather, eligibility workers and local office or call center employees should assist households in initiating the process for reinstating benefits. Once the benefits are reinstated, the benefit aging process must start over so that the household has another six months to access the account before the reinstated benefits are taken off-line again, and another 12 months to access the account before those benefits are expunged due to inactivity.

    This provision would be codified at 7 CFR 274.2(h)(1).

    Procedural Matters Executive Order 12866 and Executive Order 13563

    Executive Orders 12866 and 13563, direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules and of promoting flexibility. This proposed rule has been determined to be not significant and was not reviewed by the Office of Management and Budget (OMB) in conformance with Executive Order 12866.

    Regulatory Impact Analysis

    This proposed rule has been designated as not significant by the Office of Management and Budget, therefore, no Regulatory Impact Analysis is required.

    Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies to analyze the impact of rulemaking on small entities and consider alternatives that would minimize any significant impacts on a substantial number of small entities. Pursuant to that review, this rule is certified not to have a significant impact on a substantial number of small entities.

    Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local and Tribal governments and the private sector. Under section 202 of the UMRA, the Department generally must prepare a written statement, including a cost/benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures to State, local, or Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires the Department to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective or least burdensome alternative that achieves the objectives of the rule.

    This proposed rule does not contain Federal mandates (under the regulatory provisions of Title II of the UMRA) that impose costs on State, local, or tribal governments or to the private sector of $100 million or more in any one year. This proposed rule is, therefore, not subject to the requirements of sections 202 and 205 of the UMRA.

    Executive Order 12372

    SNAP is listed in the Catalog of Federal Domestic Assistance under No. 10.551. For the reasons set forth in 2 CFR chapter IV, this Program is excluded from the scope of Executive Order 12372, which requires intergovernmental consultation with state and local officials.

    Executive Order 13132

    Executive Order 13132, requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under section (6)(b)(2)(B) of Executive Order 13132. FNS has considered the impact of this proposed rule on State and local governments and has determined that this rulemaking does not have federalism implications. This proposed rule does not impose substantial or direct compliance costs on State and local governments. Therefore, under section 6(b) of the Executive Order, a federalism summary impact statement is not required.

    Executive Order 12988

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. This proposed rule is intended to have preemptive effect with respect to any State or local laws, regulations or policies which conflict with its provisions or which would otherwise impede its full implementation. This proposed rule is not intended to have retroactive effect unless specified in the DATES section of the final rule. Prior to any judicial challenge to the provisions of this rule or the application of its provisions, all applicable administrative procedures must be exhausted.

    Executive Order 13175

    Executive Order 13175, requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects 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. In late 2010 and early 2011, USDA engaged in a series of consultative sessions to obtain input by tribal officials or their designees concerning the impact of this rulemaking on the tribe or Indian tribal governments, or whether this rulemaking may preempt tribal law. USDA did not receive any comments specific to this proposed rule during the sessions. Reports from the consultative sessions were made part of the USDA annual reporting on Tribal Consultation and Collaboration. USDA offers consultation opportunities, such as webinars and teleconferences, for collaborative conversations with tribal leaders and their representatives concerning ways to improve rules with regard to their effect on Indian country on a quarterly basis as part of its yearly tribal consultation schedule.

    We are unaware of any current tribal laws that could be in conflict with the proposed rule. We request that commenters address any concerns in this regard in their responses.

    Civil Rights Impact Analysis

    FNS has reviewed this rule in accordance with Departmental Regulations 4300-4, “Civil Rights Impact Analysis,” and 1512-1, “Regulatory Decision Making Requirements.” After a careful review of the rule's intent and provisions, FNS has determined that this proposed rule will not in any way limit or reduce the ability of protected classes of individuals to receive SNAP benefits on the basis of their race, color, national origin, sex, age, disability, religion or political belief nor will it have a differential impact on minority owned or operated business establishments, and woman owned or operated business establishments that participate in SNAP.

    Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. chap. 35; see 5 CFR 1320) requires the Office of Management and Budget (OMB) approve all collections of information by a Federal agency before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current valid OMB control number. This proposed rule does not contain information collection requirements subject to approval by OMB under the Paperwork Reduction Act of 1995.

    E-Government Act Compliance

    The Food and Nutrition Service is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

    List of Subjects in 7 Parts 271 and 274

    Food stamps, Grant programs—social programs, Reporting and recordkeeping requirements.

    For reason set forth in the preamble, 7 CFR parts 271 and 274 are proposed to be amended as follows:

    SUBCHAPTER C—[AMENDED] 1. In the heading of subchapter C of chapter II, remove the words “Food Stamp” and add in their place the words “Supplemental Nutrition Assistance”. 2. The authority citation for 7 CFR parts 271 and 274 continues to read as follows: Authority:

    7 U.S.C. 2011-2036.

    PART 271—GENERAL INFORMATION AND DEFINITIONS
    § 271.1 General purpose and scope.
    3. In § 271.1: a. Revise paragraph (a); b. Remove the word “coupons” from the fourth sentence of paragraph (b) and add in its place “SNAP benefits”; and c. Remove the word “coupon” from the tenth sentence of paragraph (b) and add in its place “benefit”.

    The revision reads as follows:

    § 271.1 General purpose and scope.

    (a) Purpose of SNAP. In accordance with section 2 of the Food and Nutrition Act of 2008, SNAP is designed to promote the general welfare and to safeguard the health and well being of the Nation's population by raising the levels of nutrition among low-income households.

    4. In § 271.2: a. Amend the definition of Allotment by removing the word “coupons” and adding in its place the word “benefits”; b. Remove the definition of Authorization to participate card (ATP); c. Add definitions for Benefit and Benefit issuer in alphabetical order; d. Remove the definition of Bulk storage point; e. Add a definition for Contractor (or Contracted vendor) in alphabetical order; f. Remove the definitions of Coupon issuer and Direct access system; g. Revise the definition of Drug addiction or alcoholic treatment and rehabilitation program; h. Add definitions for Electronic Benefit Transfer (EBT) account, Electronic Benefit Transfer (EBT) card, and Electronic Benefit Transfer (EBT) system in alphabetical order; i. Amend the definition of Eligible foods by removing the word “coupons” where it appears twice in paragraph (3) of the definition, and adding in its place the words “SNAP benefits”; j. Amend the definition of Employment and training (E&T) component by removing “6(d)(4)(B)(iv)” and adding in its place “6(d)(4)(B)” and by removing “(7 U.S.C. 2014(2)(4)(B))” and adding in its place “(7 U.S.C. 2015(d)(4)(B))”; k. Amend the definition of Employment and training (E&T) mandatory participant by removing “7 U.S.C. 2014(d)(1)” and adding in its place “7 U.S.C. 2015(d)(1)”; l. Amend the definition of Firm's practice by removing the words “food coupons” and adding in their place the words “SNAP benefits”; m. Add a definition for Food and Nutrition Act of 2008 (Food and Nutrition Act) in alphabetical order; n. Revise the definition of Food Stamp Act; o. Amend the definition of Identification (ID) card by removing the words “food coupons” and adding in its place the words “SNAP benefits”; p. Add definitions for Interoperability, Manual transaction, and Manual voucher in alphabetical order; q. Amend the definition of Overissuance by removing the word “coupons” and adding in its place the word “benefits”; r. Add definitions for Personal identification number (PIN), Point-of-sale (POS) terminal, and Primary account number (PAN) in alphabetical order; s. Remove the definition of Program; t. Add definitions for Retailer EBT Data Exchange (REDE) system and Supplemental Nutrition Assistance Program (SNAP or Program) in alphabetical order.

    The additions and revisions read as follows:

    § 271.2 Definitions.

    Benefit means the value of supplemental nutrition assistance provided to a household by means of an EBT system or other means of providing assistance, as determined by the Secretary.

    Benefit issuer means any office of the State agency or any person, partnership, corporation, organization, political subdivision or other entity with which a State agency has contracted for, or to which it has delegated functional responsibility, in connection with the issuance of benefits to households.

    Contractor (or contracted vendor) means an entity that is selected to perform EBT-related services for the State agency.

    Drug addiction or alcoholic treatment and rehabilitation program means any drug addiction or alcoholic treatment and rehabilitation program conducted by a private, nonprofit organization or institution, or a publicly operated community mental health center and certified by the requisite State title XIX Agency as:

    (1) Receiving funding under part B of title XIX of the Public Health Service Act (42 U.S.C. 300x et seq.);

    (2) Eligible to receive funding under part B of title XIX even if it does not actually receive funding; or

    (3) Operating to further the purposes of part B of title XIX, to provide treatment to drug addicts and or alcoholics.

    Electronic Benefit Transfer (EBT) account means a set of records containing demographic, card, benefit, transaction and balance data for an individual household within the EBT system that is maintained and managed by a State or its contractor as part of the client case record.

    Electronic Benefit Transfer (EBT) card means an on-line magnetic stripe card or off-line smart card issued to a household member or authorized representative through the EBT system by a benefit issuer.

    Electronic Benefit Transfer (EBT) system means an electronic payments system under which household benefits are issued from and stored in a central databank, maintained and managed by a State or its contractor, that uses electronic funds transfer and point-of-sale technology for the delivery and control of food and other public assistance benefits.

    Food and Nutrition Act of 2008 (Food and Nutrition Act) means title 7 of the United States Code, sections 2011 through 2036 (7 U.S.C. 2011-2036), including any subsequent amendments thereto.

    Food Stamp Act means the Food Stamp Act of 1977 (Pub. L. 95-113) as amended through Public Law 108-269, July 2, 2004.

    Interoperability means a system that enables program benefits issued via an EBT card to be redeemed outside the State that issued the benefits.

    Manual transaction means an EBT transaction that is processed with the use of a paper manual voucher when there is an EBT system outage.

    Manual voucher means a paper document signed by the EBT cardholder that allows a retailer to redeem benefits through a manual transaction.

    Personal Identification Number (PIN) means a numeric code selected by or assigned to a household and used to verify the identity of an EBT cardholder when performing an EBT transaction.

    Point-of-Sale (POS) terminal means a range of devices deployed at authorized retail food stores for redeeming benefits through the use of an EBT card and PIN to initiate electronic debits and credits of household EBT and retailer bank accounts.

    Primary Account Number (PAN) means a number embossed or printed on the EBT card and encoded onto the card to identify the State and EBT account holder.

    Retailer EBT Data Exchange (REDE) system means the FNS system that allows the automated exchange of authorized retailer demographic data between FNS and the State and/or EBT contractor for notification of changes in retailer Program participation.

    Supplemental Nutrition Assistance Program (SNAP or Program) means the program operated pursuant to the Food and Nutrition Act of 2008.

    § 271.4 [Amended]
    5. In § 271.4(a)(2) remove the word “coupons” and add in its place “SNAP benefits and EBT cards”.
    § 271.5 [Amended]
    6. In § 271.5: a. Remove “coupon” and “coupons” wherever they appear and add in their place “benefit” and “benefits”, respectively, including the section heading; b. Amend paragraph (a) by adding “and EBT cards” at the end of the last sentence; c. Amend the introductory text of paragraph (b) by removing the word “ATP” and adding in its place the word “EBT”; d. Remove paragraphs (b)(1) through (3); and e. Amend paragraph (c) by removing the word “ATP's” wherever they appear and adding in its place the words “EBT cards”. PART 274—ISSUANCE AND USE OF BENEFITS 7. In § 274.2: a. Revise paragraph (c); b. Amend paragraph (e)(1) by removing the words “of paragraphs (e) through (h)”; c. Amend paragraph (g)(3) by removing the words “paragraph (h)(3)” and adding the words “paragraph (i)”; d. Revise paragraph (h); e. Add paragraph (i).

    The revisions and additions read as follows:

    § 274.2 Providing benefits to participants.

    (c) Benefit allotments. (1) State agencies shall not issue ongoing monthly benefit allotments to a household in more than one issuance during a month except with respect to the issuance of benefits to a resident of a drug and alcohol treatment and rehabilitation program in accordance with § 273.11(e) of this chapter.

    (2) For those households which are to receive a combined allotment, the State agency shall provide the benefits for both months as an aggregate (combined) allotment, or as two separate allotments, made available at the same time in accordance with the timeframes specified in § 273.2 of this chapter.

    (h) Inactive EBT accounts. An inactive EBT account means that the household has not initiated activity that affects the balance of the household's SNAP benefits in the account, such as a purchase or return, for a minimum of six months.

    (1) Off-line storage. If a household's EBT account is inactive for six months or longer, State agencies may elect to store all benefits in that account off-line.

    (i) Off-line benefits are benefits that have been removed from the EBT system for storage by the State agency and are no longer accessible to the household unless and until the benefits are reinstated upon contact by the household.

    (ii) The State agency shall send written notification to the household up to 10 days prior to or concurrent with the action to store benefits off-line and describe the steps necessary to bring the benefits back on-line. If an inactive account has a zero balance, a notice to the household is not required.

    (iii) Benefits stored off-line that have not reached the 12-month timeframe for expungement in accordance with paragraph (h)(2) of this section shall be reinstated and made available within 48 hours of reapplication or contact by the household.

    (iv) Off-line benefits shall be removed from the Account Management Agent system, making them unavailable to the household. Upon reinstatement, the benefits shall be reissued and the account shall be reactivated or a new account established to resume the benefit aging process from the new issuance date.

    (2) Expungement. On a daily basis, the State agency shall expunge benefits from accounts that have been inactive for a period of 12 months in accordance with the following:

    (i) When the oldest benefit allotment has not been accessed by the household for 12 months, the State agency shall expunge benefits from the EBT account or off-line storage at the monthly benefit allotment level as each benefit allotment ages to 12 months since the date of issuance or since the last date of account activity, whichever date is later.

    (ii) Expunged benefits shall be removed from the Account Management Agent unless already removed as provided in paragraph (h)(1) of this section, and shall not be reinstated.

    (iii) The State agency shall not expunge any benefits from active accounts even if there are benefit allotments older than 12 months. If at any time after the expungement process begins, the household initiates activity affecting the balance of the account, the State shall stop expunging benefits from the account and start the account aging process over again for the remaining benefits.

    (iv) Notwithstanding the paragraph (h)(2)(iii) of this section, in instances when the State agency verifies a death match for all certified members of the household and closes the SNAP case in accordance with § 272.14 of this chapter, the State agency shall expunge the remaining SNAP balance in the household's EBT account at that time.

    (i) Procedures to adjust SNAP accounts. Procedures shall be established to permit the appropriate managers to adjust SNAP benefits that have already been posted to an EBT account prior to the household accessing the account; or to remove benefits from inactive accounts for off-line storage or expungement in accordance with paragraph (h) of this section.

    (1) Whenever benefits are stored off-line or expunged, the State agency shall document the date, amount of the benefits and storage location in the household case file.

    (2) Issuance reports shall reflect the adjustment to the State agency issuance totals to comply with monthly issuance reporting requirements prescribed under § 274.4.

    Dated: September 14, 2016. Telora T. Dean, Acting Administrator, Food and Nutrition Service.
    [FR Doc. 2016-22860 Filed 9-28-16; 8:45 am] BILLING CODE 3410-30-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9113; Directorate Identifier 2016-NM-042-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Defense and Space S.A. (Formerly Known as Construcciones Aeronauticas, S.A.) Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for all Airbus Defense and Space S.A. (formerly known as Construcciones Aeronauticas, S.A.) Model CN-235, CN 235-100, CN 235-200, and CN 235-300 airplanes. This proposed AD was prompted by reports of cracks in certain areas of the rear fuselage. This proposed AD would require repetitive borescope and detailed visual inspections of the rear fuselage lateral beam and its external area and repair if necessary. We are proposing this AD to detect and correct cracks in the rear fuselage lateral beam and its external area; such cracking could lead to failure of the affected components, and result in reduced structural integrity of the fuselage.

    DATES:

    We must receive comments on this proposed AD by November 14, 2016.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-493-2251.

    Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Airbus Defence and Space, Services/Engineering Support, Avenida de Aragón 404, 28022 Madrid, Spain; telephone +34 91 585 55 84; fax +34 91 585 31 27; email [email protected] 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.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9113; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1112; fax 425-227-1149.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9113; Directorate Identifier 2016-NM-042-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

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

    Discussion

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued Airworthiness Directive 2016-0064, dated April 04, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Defense and Space S.A. Model CN-235, CN-235-100, CN-235-200, and CN-235-300 airplanes. The MCAI states:

    During a scheduled visual inspection accomplished in accordance with the CN-235 Maintenance Review Board (MRB) Document task 53.160, cracking was found, affecting the rear fuselage lateral beam, both left hand (LH) and right hand (RH) sides. The investigation to determine the cause of these cracks is on-going.

    This condition, if not detected and corrected, could lead to failure of the affected components, resulting in reduced structural integrity of the fuselage.

    To address this potential unsafe condition, Airbus Defence and Space (D&S) issued Alert Operator Transmission (AOT) AOT-CN235-53-0002 Revision 1 (hereafter referred to as `the AOT' in this AD) to provide inspection instructions.

    For the reasons described above, this [EASA] AD requires repetitive inspections [special detailed inspection with a borescope and detailed visual] of the rear fuselage lateral beam and its external area and, depending on findings, [cracks or discrepancies], accomplishment of applicable corrective action(s) [repair].

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9113.

    Related Service Information Under 1 CFR Part 51

    We reviewed Airbus Defense and Space Alert Operators Transmission (AOT), AOT-CN235-53-0002, Revision 1, dated September 17, 2015. This service information describes repetitive borescope and detailed visual inspection requirements for the rear fuselage lateral beam and its external area. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination and Requirements of This Proposed AD

    This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

    Costs of Compliance

    We estimate that this proposed AD affects 13 airplanes of U.S. registry.

    We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Inspection 2 work-hours × $85 per hour = $170 0 $170 $2,210

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

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Airbus Defense and Space S.A. (Formerly Known as Construcciones Aeronauticas, S.A.): Docket No. FAA-2016-9113; Directorate Identifier 2016-NM-042-AD. (a) Comments Due Date

    We must receive comments by November 14, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Airbus Defense and Space S.A. (formerly known as Construcciones Aeronauticas, S.A.) Model CN-235, CN-235-100, CN-235-200, and CN-235-300 airplanes, certificated in any category, all manufacturer serial numbers.

    (d) Subject

    Air Transport Association (ATA) of America Code 53, Fuselage.

    (e) Reason

    This AD was prompted by reports of cracks in certain areas of the rear fuselage. We are issuing this AD to detect and correct cracks in the rear fuselage lateral beam and its external area; such cracking could lead to failure of the affected components, and result in reduced structural integrity of the fuselage.

    (f) Compliance

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

    (g) Repetitive Inspections on the Fuselage Lateral Beam

    Within the compliance time specified in Table 1 to paragraph (g) of this AD and, thereafter, at intervals not to exceed the values specified in Table 2 to paragraph (g) of this AD, as applicable to airplane model, accomplish the inspections as specified in paragraphs (g)(1) and (g)(2) of this AD, in accordance with the instructions of Airbus Defense and Space Alert Operators Transmission (AOT) AOT-CN235-53-0002, Revision 1, dated September 17, 2015.

    (1) A special detailed inspection for cracks and other discrepancies with a borescope of the rear fuselage lateral beam between Frame (FR) 31 and FR45, left-hand (LH) and right-hand (RH) side.

    (2) A detailed visual inspection for cracks and other discrepancies of the external area of the rear fuselage lateral beam, LH and RH side.

    Table 1 to Paragraph (g) of This AD—Initial Inspection Compliance Time A or B, whichever occurs later A Before exceeding 15,000 flight cycles or 15,000 flight hours, whichever occurs first since airplane first flight. B Within 50 flight cycles or 50 flight hours whichever occurs first after the effective date of this AD. Table 2 to Paragraph (g) of This AD—Repetitive Inspection Intervals Airplane models Repetitive interval
  • (whichever occurs first, flight cycles
  • or flight hours)
  • Model CN-235 and CN-235-100 airplanes 3,600 flight cycles or 3,100 flight hours. Model CN-235-200 airplanes 3,600 flight cycles or 2,800 flight hours. Model CN-235-300 airplanes 15,000 flight cycles or 15,000 flight hours.
    (h) Repair

    If any crack or discrepancy is found during any inspection required by paragraph (g) of this AD: Before further flight, contact and obtain repair instructions from Airbus Defense and Space S.A. in accordance with paragraph (k)(2) of this AD, and within the compliance time indicated in those instructions, accomplish the repair accordingly, including any post-repair maintenance task(s), as applicable.

    (i) Continued Inspection of Repaired Areas

    Accomplishment of a repair on an airplane, as required by paragraph (h) of this AD, does not constitute terminating action for the repetitive inspections as required by paragraph (g) of this AD for that airplane, unless specified in the applicable repair instructions obtained in paragraph (h).

    (j) Credit for Previous Actions

    This paragraph provides credit for actions required by paragraphs (g) and (h) of this AD, if those actions were performed before the effective date of this AD, using Airbus Defense and Space AOT AOT-CN235-53-0002, dated August 28, 2015.

    (k) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Shahram Daneshmandi, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1112; fax 425-227-1149. 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.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or EASA; or Airbus Defense and Space S.A.'s EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (l) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2016-0064, dated April 04, 2016, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9113.

    (2) For service information identified in this AD, contact EADS-CASA, Military Transport Aircraft Division (MTAD), Integrated Customer Services (ICS), Technical Services, Avenida de Aragón 404, 28022 Madrid, Spain; telephone +34 91 585 55 84; fax +34 91 585 55 05; email [email protected]; Internet http://www.eads.net. 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.

    Issued in Renton, Washington, on September 16, 2016. Suzanne Masterson, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-23085 Filed 9-28-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9112; Directorate Identifier 2016-NM-091-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes. This proposed AD was prompted by reports of the Krueger flap bullnose departing an airplane during taxi, which caused damage to the wing structure and thrust reverser. This proposed AD would require a one-time detailed visual inspection for discrepancies in the Krueger flap bullnose attachment hardware, and related investigative and corrective actions if necessary. We are proposing this AD to detect and correct missing Krueger flap bullnose hardware. Such missing hardware could result in the Krueger flap bullnose departing the airplane during flight, which could damage empennage structure and lead to the inability to maintain continued safe flight and landing.

    DATES:

    We must receive comments on this proposed AD by November 14, 2016.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-493-2251.

    Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9112.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9112; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Alan Pohl, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6450; fax: 425-917-6590; email: [email protected].

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2016-9112; Directorate Identifier 2016-NM-091-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

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

    Discussion

    We have received a report indicating that the Krueger flap bullnose departed an airplane during taxi, which caused damage to the wing structure and thrust reverser. There have been six other in-service reports of missing bullnose attachment hardware. Those events resulted in a bullnose droop condition but no departure of the part from the airplane. Departure of the Krueger flap bullnose from the airplane during flight could damage empennage structure and lead to the inability to maintain continued safe flight and landing.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin 737-57A1327, dated May 20, 2016. The service information describes procedures for performing a one-time detailed visual inspection for discrepancies in the Krueger flap bullnose attachment hardware and related investigative and corrective actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

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

    Proposed AD Requirements

    This proposed AD would require accomplishing the actions specified in the service information described previously. For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-9112.

    The phrase “related investigative actions” is used in this proposed AD. Related investigative actions are follow-on actions that (1) are related to the primary action, and (2) further investigate the nature of any condition found. Related investigative actions in an AD could include, for example, inspections.

    The phrase “corrective actions” is used in this proposed AD. Corrective actions correct or address any condition found. Corrective actions in an AD could include, for example, repairs.

    Costs of Compliance

    We estimate that this proposed AD affects 1,495 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Inspection of the Krueger flap bullnose hardware 3 work-hours × $85 per hour = $255 $255 $381,225

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

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

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): The Boeing Company: Docket No. FAA-2016-9112; Directorate Identifier 2016-NM-091-AD. (a) Comments Due Date

    We must receive comments by November 14, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 737-57A1327, dated May 20, 2016.

    (d) Subject

    Air Transport Association (ATA) of America Code 57, Wings.

    (e) Unsafe Condition

    This AD was prompted by reports of the Krueger flap bullnose departing an airplane during taxi, which caused damage to the wing structure and thrust reverser. We are proposing this AD to detect and correct missing Krueger flap bullnose hardware. Such missing hardware could result in the Krueger flap bullnose departing the airplane during flight, which could damage empennage structure and lead to the inability to maintain continued safe flight and landing.

    (f) Compliance

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

    (g) Inspection of the Krueger Flap Bullnose

    Within 6 months after the effective date of this AD, do a detailed inspection for discrepancies of the Krueger flap bullnose attachment hardware, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-57A1327, dated May 20, 2016. Do all applicable related investigative and corrective actions before further flight.

    (h) Alternative Methods of Compliance (AMOCs)

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

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

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

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

    (i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or sub-step is labeled “RC Exempt,” then the RC requirement is removed from that step or sub-step. 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.

    (i) Related Information

    (1) For more information about this AD, contact Alan Pohl, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6450; fax: 425-917-6590; email: [email protected].

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

    Issued in Renton, Washington, on September 16, 2016. Suzanne Masterson, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-23088 Filed 9-28-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR part 91 [Docket No.: FAA-2016-9154; Notice No. 16-05] RIN 2120-AK88 Incorporation by Reference of ICAO Annex 2; Removal of Outdated North Atlantic Minimum Navigation Performance Specifications AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This rulemaking proposes to harmonize the FAA's regulations regarding the North Atlantic (NAT) Minimum Navigation Performance Specifications (MNPS) with those of the International Civil Aviation Organization (ICAO). ICAO's NAT Region is transitioning from the decades-old MNPS navigation specification to a more modern, Performance-Based Navigation (PBN) specification. This proposed rule would also correct and update the incorporation by reference of ICAO Annex 2 in the FAA's regulations.

    DATES:

    Send comments on or before October 31, 2016.

    ADDRESSES:

    Send comments identified by docket number FAA-2016-9154 using any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for sending your comments electronically.

    Mail: Send comments to Docket Operations, M-30; U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.

    Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Fax: Fax comments to Docket Operations at 202-493-2251.

    Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

    Docket: Background documents or comments received may be read at http://www.regulations.gov at any time. Follow the online instructions for accessing the docket or go to the Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    For technical questions concerning this action, contact Kevin C. Kelley, Flight Technologies Division, Performance Based Flight Systems Branch, AFS-470, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-8854; email [email protected]

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA is responsible for the safety of flight in the U.S. and for the safety of U.S. civil operators, U.S.-registered civil aircraft, and U.S.-certificated airmen throughout the world. The FAA's authority to issue rules on aviation safety is found in title 49 United States Code (U.S.C.). Subtitle I, section 106(f), describes the authority of the FAA Administrator. Subtitle VII of title 49, Aviation Programs, describes in more detail the scope of the agency's authority. Section 40101(d)(1) provides that the Administrator shall consider in the public interest, among other matters, assigning, maintaining, and enhancing safety and security as the highest priorities in air commerce. Section 40105(b)(1)(A) requires the Administrator to exercise his authority consistently with the obligations of the U.S. Government under international agreements.

    This rulemaking is promulgated under the authority described in title 49, subtitle VII, part A, subpart III, section 44701, General requirements. Under that section, the FAA is charged broadly with promoting safe flight of civil aircraft in air commerce by prescribing, among other things, regulations and minimum standards for practices, methods, and procedures that the Administrator finds necessary for safety in air commerce and national security.

    This rulemaking is also promulgated pursuant to title 49 U.S.C. 40103(b)(1) and (2), which charge the FAA with issuing regulations: (1) To ensure the safety of aircraft and the efficient use of airspace; and (2) to govern the flight of aircraft for purposes of navigating, protecting and identifying aircraft, and protecting individuals and property on the ground.

    This regulation is within the scope of that authority, because it amends 14 CFR 91.703 to harmonize and incorporate changes made to international standards directly applicable in airspace over the high seas.

    I. Executive Summary

    The proposed rule would harmonize FAA regulations with ICAO standards relevant to the North Atlantic and to airspace over the high seas. In January 2016, ICAO announced that the NAT Minimum Navigation Performance Specifications (MNPS) airspace would be renamed NAT High Level Airspace (HLA) effective February 4, 2016. ICAO further announced that existing MNPS authorizations by the State of the operator or the State of registry will expire in January 2020. As a result, operators in the NAT HLA would no longer be able to use the MNPS for the navigation of aircraft and would be required to transition to a PBN specification. Airspace over the high seas (oceans, seas, and waters outside of sovereign jurisdiction) is governed by ICAO Annex 2. The FAA's regulatory basis for operational authorizations for the NAT and for all airspace over the high seas is addressed in 14 CFR 91.703, which incorporates Annex 2 by reference, and § 91.705, which provides for NAT MNPS authorizations.

    This proposed rule, if adopted, would remove MNPS from part 91 of title 14 Code of Federal Regulations (14 CFR) and would not impose any new requirements.

    Additionally, under this proposal, the FAA is updating the incorporation by reference (IBR) of ICAO Annex 2 in § 91.703, which was last updated in 1997. Since that time, ICAO has published thirteen amendments to Annex 2. This proposal would remove potential ambiguities about the version of Annex 2 applicable to airspace over the high seas.

    Costs and Benefits

    The proposed rule is an administrative harmonization, as it does not impose any new requirements. If the FAA does not adopt this rule, ICAO's current transition from the MNPS specification to PBN specifications for operations in the NAT HLA, will still take place by 2020. Consequently, there are no costs associated with this proposed rule.

    II. Background International Civil Aviation Organization (ICAO)

    The Chicago Convention was adopted to promote the safe and orderly development of international civil aviation. The Chicago Convention also created ICAO, which promulgates uniform international Standards and Recommended Practices (SARPs) aimed at standardizing international civil aviation operational practices and services. Currently, these SARPs are detailed in 19 annexes to the Chicago Convention. Annex 2, Rules of the Air, is of particular relevance here, as these rules pertain to airspace over the high seas. Article 12 to the Convention obligates each Contracting State to adopt measures to ensure that persons operating an aircraft over the high seas comply with Annex 2. As a Contracting State, the U.S. has satisfied this responsibility through 14 CFR part 91, General Operating and Flight Rules, which requires that U.S.-registered aircraft comply with Annex 2 when over the high seas (see 14 CFR 91.703). Annex 2, paragraph 5.1.1 provides that “Aircraft shall be equipped with suitable instruments and with navigation equipment appropriate to the route to be flown.”

    Transition From Minimum Navigation Performance Specifications (MNPS) to Performance-Based Navigation (PBN) Specification

    In 1977, ICAO established the Minimum Navigation Performance Specifications (MNPS) and the corresponding NAT airspace where MNPS would apply in an effort to address constrained capacity in light of continued growth of NAT traffic. The following year, the required lateral separation was safely halved from 120 to 60 nautical miles due to the enhanced reliability of navigation equipment meeting the MNPS. This resulted in large capacity and efficiency gains.

    Since the implementation of the MNPS, the 60 nautical mile lateral separation has remained in place.1 In the meantime, more modern PBN specifications of Area Navigation/Required Navigation Performance 10 (RNAV/RNP 10) and RNP 4, have been introduced, as well as automatic aircraft datalink systems which provide periodic position reports to ground stations.

    1 On December 15, 2015, a trial of Reduced Lateral Separation Minima began in portions of the North Atlantic, with tracks spaced at half degrees of latitude, nominally 30 nautical miles apart.

    In light of those new developments, and in an effort to again safely increase capacity and efficiency, ICAO has allowed for authorizations by the State of the operator or the State of registry using RNAV 10 and RNP 4 specifications. The FAA has published guidance explaining RNP operations in FAA Advisory Circular 90-105A, Approval Guidance for RNP Operations and Barometric Vertical Navigation in the U.S. National Airspace System and in Oceanic and Remote Continental Airspace. Also, in a State Letter dated January 5, 2015, and “NAT OPS Bulletin 2016_001” issued January 22, 2016, ICAO announced that NAT Minimum Navigation Performance Specifications (MNPS) airspace would be renamed as the NAT High Level Airspace (HLA) effective February 4, 2016.

    III. Discussion of the Proposal Removal of References to the North Atlantic Minimum Navigation Performance Specifications

    As a result of ICAO renaming the NAT MNPS airspace, the references to NAT MNPS in the FAA's regulations are outdated. The FAA proposes to remove all instances of MNPS in 14 CFR part 91. The prescriptive references to navigational specifications are not necessary since operators are required to comply with Annex 2, which aligned RNP and RNAV terminology with the PBN concept in Amendment 41. The FAA issued a revised Operations Specification (OpSpec B039) for the authorization of PBN operations in the NAT HLA on June 10, 2016. Two part 121 carriers are conducting operations in the NAT HLA under revised OpSpec B039 and the FAA expects other carriers and operators to follow suit.2 Existing B039 authorizations remain valid until December 31, 2019.

    2 Of the more than 10,000 ATC flight plans filed in June 2016 for aircraft transiting the New York Oceanic Flight Information Region in the North Atlantic, in excess of 98% indicated either RNP 4 or RNAV/RNP 10 capability.

    Incorporation by Reference Update and Correction

    The FAA also proposes to update and correct the incorporation by reference to ICAO Annex 2 in § 91.703 to the current version of the document, as amended through November 10, 2016. Annex 2, including all amendments through Amendment 32, was incorporated by reference into § 91.703 effective April 9, 1997 (62 FR 17480, Apr. 9, 1997). Since then, 13 amendments to Annex 2 have been published (see Table 1).

    Table 1—Amendments to ICAO Annex 2 Since Last IBR Into 14 CFR Part 91 Amendment Subject Applicable 33 Communication failure procedures 16 November 1997. 34 Definitions; automatic dependent surveillance systems and procedures; data interchange between automated ATS systems; ATS applications for air-ground data links; problematic use of psychoactive substances 5 November 1998. 35 ATS airspace classifications; visual meteorological conditions clearance; runway-holding position 4 November 1999. 36 Revised definitions of “air traffic control unit”, “approach control unit”, “alternate aerodrome” “flight crew member”, “pilot-in-command” and “visibility”; editorial amendments 1 November 2001. 37 Pilot procedures in the event of unlawful interference; editorial amendments 28 February 2003. 38 Definitions; marshalling signals; communication failure procedures; interception maneuvers; editorial amendments 24 November 2005. 39 Restructuring of text to emphasize the responsibility of the pilot-in-command for the avoidance of collisions 23 November 2006. 40 Definitions and associated procedures for ADS-B, ADS-C and ADS-C agreement; pilot procedures in the event of unlawful interference 22 November 2007. 41 Amendment to a definition and Standard to align required navigation performance (RNP) and area navigation (RNAV) terminology with the performance-based navigation (PBN) concept 20 November 2008. 42 Amendments to standard emergency hand signals for emergency communications between aircraft rescue and firefighting personnel and flight and/or cabin crews; and harmonization of cruising levels 19 November 2009. 43 Amendment to definitions; speed variations; and remotely piloted aircraft 15 November 2012. 44 Definitions related to instrument approach operations 13 November 2014. 45 Speed variation procedures 10 November 2016.

    In accordance with a process described in FAA Order JO 7000.6A, Identification and Notification of Differences Between ATO Products and Services and ICAO Documents, the FAA has examined each of the Amendments to Annex 2 listed in Table 1. Differences are published in the GEN 1.7 section of the current United States Aeronautical Information Publication (AIP). The differences listed in the AIP for Annex 2 are minor in nature, generally apply to operations within the United States and have no relation to the Annex 2 requirement for aircraft to be operated over the high seas with navigation equipment appropriate to the route to be flown.3

    3 For a complete and current listing of the differences, see the United States Aeronautical Information Manual, Section GEN 1.7, found at: http://www.faa.gov/air_traffic/publications/media/AIP.pdf.

    The FAA notes that the current IBR of Annex 2 does not include the proper language conveying approval of the Director of the Federal Register and proposes to update the IBR of Annex 2 to reflect the Director of the Federal Register's approval as reflected in the proposed regulatory text.

    Annex 2 is available through the International Civil Aviation Organization (ICAO), Document Sales Unit, 999 University Street, Montreal, Quebec H3C 5H7, Canada. Also, you will be able obtain this document on the Internet at http://www.ICAO.int/eshop/index.cfm. It will also be available for inspection at the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    IV. Regulatory Notices and Analyses A. Regulatory Evaluation

    Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this proposed rule.

    Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this rule. The reasoning for this determination follows. This rulemaking would harmonize the FAA's regulations regarding the NAT MNPS with those of ICAO. ICAO's NAT Region is transitioning from the decades-old “MNPS” navigation specification to a more modern PBN specification. The FAA also intends to update the incorporation by reference of ICAO Annex 2 in § 91.703. This proposed action, if adopted, would remove all references to MNPS under 14 CFR part 91 and would not impose any new requirements.

    Flights in international airspace must follow ICAO standards in that airspace. United States operators have historically complied with provisions relevant to airspace over the high seas in Annex 2. Accordingly, as operators are already complying with ICAO's provisions relevant to operations over the high seas, the FAA believes the proposed rule incorporating the current version of ICAO Annex 2 would impose minimal cost. The FAA requests comments on this determination.

    The FAA has, therefore, determined that this rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures.

    B. Regulatory Flexibility Determination

    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.” To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

    Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.

    However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

    Even though there are substantial numbers of small entities operating aircraft across international waters, this proposed rule would not impose a significant economic impact. Flights in international airspace must follow ICAO standards in that airspace. Currently, United States operators must comply with Annex 2 when operating over the high seas. This proposed rule harmonizes FAA regulations to be in accord with new ICAO rules effective in airspace over the high seas and imposes no new regulations. Accordingly, no affected entity incurs new costs. Thus the FAA expects this proposed rule would not impose a significant economic impact on a substantial number of small entities. The FAA asks for comment on this determination.

    Therefore, as provided in section 605(b), the head of the FAA certifies that this rulemaking would not result in a significant economic impact on a substantial number of small entities.

    C. International Trade Impact Assessment

    The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this rule and determined that it uses international ICAO standards and the rule complies with the Trade Agreements Act as amended by the Uruguay Round Agreements Act.

    D. Unfunded Mandates Assessment

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155 million in lieu of $100 million. This rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

    E. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there would be no new requirement for information collection associated with this proposed rule.

    F. International Compatibility

    In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to ICAO Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has identified differences with the current version of Annex 2 (through Amendment 45). These differences, as prescribed in ICAO Annex 15, have been published in the United States Aeronautical Information Publication (AIP), section GEN 1.7. The differences listed in the AIP for Annex 2 are minor in nature and have no relation to the Annex 2 requirement for aircraft to be operated with navigation equipment appropriate to the route to be flown. This is consistent with the FAA's support of international compatibility and its obligations under the Convention on International Civil Aviation.

    G. Environmental Analysis

    FAA Order 1050.1F identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-6.6 and involves no extraordinary circumstances.

    V. Executive Order Determinations A. Executive Order 13132, Federalism

    The FAA has analyzed this proposed rule under the principles and criteria of Executive Order 13132, Federalism. The agency has determined that this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have Federalism implications.

    B. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use

    The FAA analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it would not be a “significant energy action” under the executive order and would not be likely to have a significant adverse effect on the supply, distribution, or use of energy.

    C. Executive Order 13609, International Cooperation

    Executive Order (E.O.) 13609, Promoting International Regulatory Cooperation, (77 FR 26413, May 4, 2012) promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policy and agency responsibilities of Executive Order 13609, Promoting International Regulatory Cooperation. The agency has determined that this action would not have a significant international impact, but would remove potential ambiguities about the applicability of ICAO rules over the high seas.

    VI. Additional Information A. Comments Invited

    The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

    The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The agency may change this proposal in light of the comments it receives.

    B. Availability of Rulemaking Documents

    An electronic copy of rulemaking documents may be obtained from the Internet by—

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

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

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

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

    All documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, may be accessed from the Internet through the Federal eRulemaking Portal referenced in item (1).

    List of Subjects in 14 CFR Part 91

    Air carrier, Air taxis, Air traffic control, Aircraft, Airmen, Aviation safety, Incorporation by reference.

    The Proposed Amendment

    In consideration of the foregoing, the Federal Aviation Administration proposes to amend chapter I of title 14, Code of Federal Regulations as follows:

    PART 91—GENERAL OPERATING AND FLIGHT RULES 1. The authority citation for part 91 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 1155, 40101, 40103, 40105, 40113, 40120, 44101, 44111, 44701, 44704, 44709, 44711, 44712, 44715, 44716, 44717, 44722, 46306, 46315, 46316, 46504, 46506-46507, 47122, 47508, 47528-47531, 47534, articles 12 and 29 of the Convention on International Civil Aviation (61 Stat. 1180), (126 Stat. 11).

    2. Amend § 91.703 as follows: a. Amend paragraphs (a)(1) and (3) by capitalizing the “a” in “Annex”; b. Remove the first sentence of paragraph (a)(4); and c. Revise paragraph (b) to read as follows:
    § 91.703 Operations of civil aircraft of U.S. registry outside of the United States.

    (b) Annex 2 to the Convention on International Civil Aviation, Tenth Edition—July 2005, with Amendments through Amendment 45, applicable November 10, 2016 is incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this section, the FAA must publish a document in the Federal Register and the material must be available to the public. All approved material is available for inspection at U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590 and is available from the International Civil Aviation Organization (ICAO), Document Sales Unit, 999 University Street, Montreal, Quebec H3C 5H7, Canada; http://www.ICAO.int/eshop/index.cfm. It is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

    § 91.705 [Removed]
    3. Remove § 91.705.
    § 91.1027 [Amended]
    4. Amend § 91.1027(a)(2) by removing “MNPS,”. Appendix C to Part 91—[Removed] 5. Remove appendix C to part 91. 6. Amend appendix G to part 91 by revising paragraph (a)(2) of section 8 to read as follows: Appendix G to Part 91—Operations in Reduced Vertical Separation Minimum (RVSM) Airspace Section 8. Airspace Designation

    (a) * * *

    (2) RVSM may be effective in the High Level Airspace (HLA) within the NAT. The HLA airspace within the NAT is defined by the volume of airspace between FL 285 and FL 420 (inclusive) extending between latitude 27 degrees north and the North Pole, bounded in the east by the eastern boundaries of control areas Santa Maria Oceanic, Shanwick Oceanic, and Reykjavik Oceanic and in the west by the western boundaries of control areas Reykjavik Oceanic, Gander Oceanic, and New York Oceanic, excluding the areas west of 60 degrees west and south of 38 degrees 30 minutes north.

    Issued under authority provided by 49 U.S.C. 106(f), 40101(d)(1), 40103(b)(1), 40105(b)(1)(A), and 44701(a)(5) in Washington, DC, on September 14, 2016. John S. Duncan, Director, Flight Standards Service.
    [FR Doc. 2016-22798 Filed 9-28-16; 8:45 am] BILLING CODE 4910-13-P
    CONSUMER PRODUCT SAFETY COMMISSION 16 CFR Parts 1112 and 1235 [Docket No. CPSC-2016-0023] Safety Standard for Baby Changing Products AGENCY:

    Consumer Product Safety Commission.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Danny Keysar Child Product Safety Notification Act, section 104(b) of the Consumer Product Safety Improvement Act of 2008 (CPSIA), requires the United States Consumer Product Safety Commission (Commission or CPSC) to promulgate consumer product safety standards for durable infant or toddler products. These standards must be substantially the same as applicable voluntary standards or more stringent than the voluntary standard if the Commission determines that more stringent requirements would further reduce the risk of injury associated with a product. Pursuant to the direction under section 104(b) of the CPSIA, the Commission is proposing a safety standard for baby changing products. The proposed rule would incorporate by reference ASTM F2388-16, Standard Consumer Safety Specification for Baby Changing Tables for Domestic Use (ASTM F2388-16) into our regulations and impose more stringent requirements for structural integrity, restraint system integrity, and warnings on labels and in instructional literature. In addition, the Commission proposes to amend our regulations include the proposed safety standard for baby changing products in the list of notice of requirements (NORs) issued by the Commission.

    DATES:

    Submit comments by December 13, 2016.

    ADDRESSES:

    Comments related to the Paperwork Reduction Act aspects of the labeling and instructional literature requirements of the proposed mandatory standard for baby changing products should be directed to the Office of Information and Regulatory Affairs, the Office of Management and Budget, Attn: CPSC Desk Officer, FAX: 202-395-6974, or emailed to [email protected].

    Other comments, identified by Docket No. CPSC-2016-0023, may be submitted electronically or in writing:

    Electronic Submissions: Submit electronic comments to the Federal eRulemaking Portal at: http://www.regulations.gov. Follow the instructions for submitting comments. The Commission does not accept comments submitted by electronic mail (email), except through www.regulations.gov. The Commission encourages you to submit electronic comments by using the Federal eRulemaking Portal, as described above.

    Written Submissions: Submit written comments by mail/hand delivery/courier to: Office of the Secretary, Consumer Product Safety Commission, Room 820, 4330 East-West Highway, Bethesda, MD 20814; telephone (301) 504-7923.

    Instructions: All submissions received must include the agency name and docket number for this proposed rulemaking. All comments received may be posted without change, including any personal identifiers, contact information, or other personal information provided, to: http://www.regulations.gov. Do not submit confidential business information, trade secret information, or other sensitive or protected information that you do not want to be available to the public. If furnished at all, such information should be submitted by mail/hand delivery/courier.

    Docket: For access to the docket to read background documents or comments received, go to: http://www.regulations.gov, insert docket number CPSC-2016-0023 into the “Search” box, and follow the prompts.

    FOR FURTHER INFORMATION CONTACT:

    Mark Kumagai, Project Manager, Directorate for Engineering Sciences, U.S. Consumer Product Safety Commission, 5 Research Place, Rockville, MD 20850; telephone: 301-987-2234; email: [email protected].

    SUPPLEMENTARY INFORMATION: I. Background and Statutory Authority

    Section 104(b) of the CPSIA, part of the Danny Keysar Child Product Safety Notification Act, requires the Commission to: (1) Examine and assess the effectiveness of voluntary consumer product safety standards for durable infant or toddler products, in consultation with representatives of consumer groups, juvenile product manufacturers, and independent child product engineers and experts; and (2) promulgate consumer product safety standards for durable infant or toddler products. Any standard the Commission adopts under this directive must be substantially the same as the applicable voluntary standard or more stringent, if the Commission determines that more stringent requirements would further reduce the risk of injury associated with the product.

    A “durable infant or toddler product,” as defined in section 104(f)(1) of the CPSIA, is “a durable product intended for use, or that may be reasonably expected to be used, by children under the age of 5 years.” Section 104(f)(2) lists examples of “durable infant or toddler products,” such as cribs, high chairs, and strollers. Although this list of example products does not include baby changing products, baby changing products satisfy the statutory definition, as they are intended for use by children under the age of 5 years and are durable products made of sturdy material that last for several years; they are similar to the example products listed in the CPSIA; and the Commission has identified changing tables as “durable infant or toddler products” in the product registration rule that the Commission issued under section 104(d) of the CPSIA. 16 CFR 1130.2(a)(14).

    Pursuant to section 104(b)(1)(A) of the CPSIA, the Commission consulted with representatives of manufacturers, consumer groups, consultants, retailers, and industry trade groups in reviewing and assessing the effectiveness of the existing voluntary standard for baby changing products, ASTM F2388-16, largely through ASTM International's (ASTM; formerly the American Society for Testing and Materials) standard-development process. The standard the Commission proposes in this notice of proposed rulemaking (NPR) is based on ASTM F2388-16 with more stringent requirements for structural integrity, restraint system integrity, and warnings on labels and in instructional literature.

    The testing and certification requirements of section 14(a) of the Consumer Product Safety Act (CPSA; 15 U.S.C. 2051-2089) apply to the standards promulgated under section 104 of the CPSIA. Section 14(a)(3) of the CPSA requires the Commission to publish an NOR for the accreditation of third party conformity assessment bodies (i.e., test laboratories) to assess whether a children's product conforms to applicable children's product safety rules. If adopted, the proposed rule for baby changing products would be a children's product safety rule that requires the issuance of an NOR. For this reason, this NPR also proposes to amend 16 CFR part 1112 to include a reference to proposed 16 CFR part 1235, the section in which the standard for baby changing products would be codified.

    II. The Product A. Definition

    ASTM F2388-16 applies to baby changing tables and other changing products. The standard defines “changing tables” as “elevated, freestanding structures” designed “to support and retain a child” with a body weight up to 30 pounds (13.6 kilograms) for the purpose of a diaper change. Changing tables may convert to other furniture pieces, such as dressers or play yards, and they may have storage or other pull-out or drop-down features. ASTM F2388-16 also applies to other changing products, such as contoured changing pads and add-on changing units that are sold separately for use on furniture products other than changing tables. Contoured changing pads have barriers designed to keep children up to 30 pounds on the pad for diaper changes on elevated surfaces. Add-on changing units are used with pieces of furniture to provide changing surfaces and/or barriers to keep children on the products during diaper changes.

    The majority of changing tables and add-on changing units are made of wood; contoured changing pads are generally made of a combination of synthetic-covered foam. Changing tables come in various designs, some of which include drawers, cabinets, or retractable stairs.

    Throughout this NPR, the Commission uses the term “baby changing products” to refer to changing tables and other changing products, such as contoured changing pads and add-on changing units that are sold separately for use on furniture products other than changing tables.

    B. Market Description

    Commission staff identified 85 firms, including manufacturers, importers, and wholesalers, that supply baby changing products to the U.S. market. Seventy-one of these firms are domestic, consisting of 57 manufacturers, 12 importers, one wholesaler, and one retailer; 14 are foreign, consisting of 12 manufacturers, one importer, and one retailer. Of the domestic firms, 59 are small businesses, as discussed is Section XI. Regulatory Flexibility Act, below, and 12 are large. Eighty-one of the firms market their products to consumers, while seven also market them for commercial daycare use. Fifty-six of the firms offer multiple baby changing products.

    Stand-alone changing tables intended for home use range widely in price, from approximately $35 to $1,400. Other baby changing products also vary greatly in price. Contoured changing pads range from about $7 to $100; add-on changing units, such as changing trays, range from approximately $12 to $1,050; and other baby products, such as cribs, play yards, dressers, and bath tubs, with attachable or built-in baby changing products, range from approximately $100 to $4,500.

    III. Incident Data

    The Commission receives data regarding product-related injuries from several sources. One such source is the National Electronic Injury Surveillance System (NEISS), from which CPSC can estimate the number of injuries associated with specific consumer products that are treated in U.S. hospital emergency departments (EDs) nationwide, based on a probability sample. Other sources include reports from consumers and others through the Consumer Product Safety Risk Management System (which also includes some NEISS data) and reports from retailers and manufacturers through CPSC's Retailer Reporting System (collectively referred to as Consumer Product Safety Risk Management System data (CPSRMS)).

    Commission staff reviewed the NEISS and CPSRMS databases for incidents involving baby changing products involving children younger than 3 years old because that age corresponds with the 30-pound weight limit in the definition of “changing tables.” See Centers for Disease Control and Prevention, National Center for Health Statistics, Data Table of Infant Weight-for-Age Charts, http://www.cdc.gov/growthcharts/html_charts/wtageinf.htm (last visited Aug. 5, 2016) (indicating 30 pounds is the 50th percentile weight of boys at 31 months old and girls at 34 months old). Staff considered CPSRMS data from January 1, 2005 through December 31, 2015, and NEISS data from January 1, 2005 through December 31, 2014 (NEISS data was not yet updated for 2015 at the time of analysis).

    Through CPSRMS sources, the Commission has received 182 reports of incidents related to baby changing products that occurred between 2005 and 2015. These reports include five fatalities, 30 injuries or adverse health problems, 113 incidents that did not result in injuries, and 34 incidents for which the Commission did not receive sufficient information to determine whether an injury occurred.

    EDs participating in NEISS reported 1,305 injuries and no deaths related to baby changing products between 2005 and 2014. Extrapolating from this probability sample, there were approximately 31,780 injuries and no fatalities related to baby changing products treated in EDs between 2005 and 2014. In analyzing the number of injuries that occurred each year between 2005 and 2014, Commission staff found that there was a statistically significant increasing trend in injuries over this period. The NEISS data also indicates that the incidence of injuries was the same for males and females and that 75 percent of the injured children were under 1 year old.

    A. Fatalities

    The Commission received reports of five fatalities associated with baby changing products between 2005 and 2015. The five reported deaths all involved caregivers using baby changing products as sleep products, which is not their intended use. All of the victims in these incidents were younger than 1 year old.

    Four of the incidents involved play yards with changing table attachments. In one of these cases, a strap hanging from a changing table accessory in a play yard strangled a child sleeping in the play yard beneath. In the remaining four deaths, children asphyxiated while sleeping on a baby changing product; three of the products were the changing table attachments on play yards, and one was a portable changing pad placed in a crib as a sleep positioner.

    In three of the reports regarding these fatalities, the caregivers and investigators appeared to be mistaken about the intended use of the product, referring to the changing table product as a “crib” and “bassinet.”

    B. Nonfatal Injuries

    Of the 182 CPSRMS incidents related to baby changing products that occurred between 2005 and 2015, 30 reportedly resulted in injuries or adverse health problems. The most frequently cited injuries were cuts, lacerations, scratches, and bruises; however, there were several more serious injuries reported as well. Three reports indicated that the victim visited the hospital; in one incident involving a leg injury, the victim was treated and released, and in two incidents involving a skull fracture and leg fracture, respectively, the victims were admitted to hospitals.

    For injuries estimated through NEISS, 94 percent were treated and released, while 5 percent were admitted to the hospital. The most commonly injured body parts were the head (71 percent) and face (13 percent). The most common types of injuries were injuries to internal organs (50 percent), contusions or abrasions (27 percent), and fractures (9 percent). Of those injuries affecting internal organs, 99 percent were head injuries; of those injuries resulting in contusions or abrasions, 83 percent affected the victim's head or face.

    C. Hazard Pattern Identification

    CPSC staff reviewed NEISS and CPSRMS data to identify hazard patterns associated with baby changing products. Both sets of data revealed several common hazard patterns, but because CPSRMS data sources generally provide greater detail about incidents, staff was able to identify more distinct hazard patterns using that data. Five hazard patterns emerged from staff's review: (1) Issues with structural integrity, (2) design hazards, (3) problems with restraint systems, (4) miscellaneous problems, and (5) undetermined hazards. Table 1 provides the frequency of each hazard pattern and category.

    Table 1—Hazard Patterns for CPSRMS Incidents Involving Baby Changing Products Between January 1, 2005 and December 31, 2015 Hazard pattern Total
  • incidents
  • Structural Integrity 119 Design 38 Restraint System 14 Miscellaneous 8 Undetermined 3

    Structural integrity issues include collapsing or unstable products, hardware issues, and assembly problems. This hazard pattern accounted for approximately 65 percent of CPSRMS incident reports (119 of 182 incidents). Fifty-five percent of the reported incidents in this hazard pattern involved collapsing baby changing products or parts (with 50 percent of those reports attributable to three particular models). The next most common type of structural integrity issue was unstable baby changing products.

    Product design issues included limb entrapments, in parts such as slats, rails, and doors, chipping finishes, unstable steps, pinching, children hitting their heads on metal parts, and a strangulation hazard from a restraint strap in a play yard changing table accessory. Approximately 21 percent of incidents reported through CPSRMS (38 of 182) fell into this hazard pattern. The majority of these incidents involved accessory components that are common to other furniture, as well as changing tables, and are not generally accessible to children when occupying a changing table as intended.

    About 8 percent of incidents (14 of 182) related to restraint systems, which include loose, broken, or detached straps, cracked or faulty buckles, pinching, choking on small parts, and the absence of a restraint system.

    Approximately 4 percent of CPSRMS incidents (8 of 182) involved miscellaneous issues, including chemical odors and the use of changing tables for unintended purposes, such as sleeping. All of the deaths associated with baby changing products involved children sleeping on the products.

    Two percent of the incident reports (3 of 182) did not provide sufficient information for Commission staff to identify a hazard pattern.

    The most frequently reported event associated with an injury in both NEISS and CPSRMS data involved children falling off, or through, baby changing products. Within NEISS data, 94 percent of injuries involved falls, while 64 percent of non-fatal CPSRMS incidents involved children falling from baby changing products. These incidents were prevalent in the structural integrity and restraint system hazard patterns. Eight of the CPSRMS fall incidents were the result of the baby changing product or supporting structure collapsing. Ten of the 14 restraint system incidents resulted in actual or potential falls, and one resulted in injury.

    Some of the fall incidents resulted in injuries of varying severity. Within the NEISS incidents, several of the fall injuries resulted in a serious head injury, such as a concussion or fractured skull. Ten CPSRMS incidents involving falls also resulted in injuries. One of these 10 incidents resulted in a fractured skull, one a fractured leg, seven involved minor injuries, such as bruises, scratches, and lacerations that did not require medical attention and one did not indicate the severity of injury. Additionally, in several cases, caregivers reported catching a falling child, potentially preventing injuries.

    D. Product Recalls

    Since January 1, 2005, two firms have recalled baby changing products. In 2006, one firm recalled approximately 130 baby changing products, due to a fall hazard. The products included cloth sections secured by zippers to support occupants. The firm found that if the zipper was misaligned, the cloth section supporting an occupant could detach. In 2007, a second firm recalled approximately 425,000 baby changing products. The product was an infant play yard with a raised changing table accessory that had a restraint strap that formed a loop beneath the changing table, posing a strangulation hazard to a child in the play yard. This recalled product was associated with one child's death.

    IV. International Standards for Changing Tables

    CPSC is aware of two international standards that apply to baby changing products:

    • ASTM F2388-16, and

    • British/European Standard BS EN 12221: 2008, Child use and care articles—Changing units for domestic use, Part 1: Safety requirements, Part 2: Test methods (European standard).

    CPSC staff reviewed the provisions in these standards and believes that ASTM F2388-16 best addresses the hazard patterns indicated in the incident data, and in most areas, ASTM F2388-16 includes more stringent requirements than the European standard. For example, although both standards require barrier durability testing, ASTM F2388-16 requires pre-conditioning or aging of contoured changing pads before testing. In contrast, the European standard does not require precondition or aging, which makes ASTM F2388-16 the more stringent standard.

    There are some areas in which the European standard includes more stringent requirements than ASTM F2388-16. For example, the European standard limits the dimensions of cords and loops, while ASTM F2388-16 does not. However, the incident data does not indicate that cords or loops present a safety hazard, apart from the one strangulation death involving a loop in a play yard, but the play yard standard has since been updated to address that hazard. In reviewing this and other provisions in which the European standard is more stringent than ASTM F2388-16, Commission staff found that the incident data does not indicate that the more stringent requirement is necessary to reduce the risk of injury, and further determined that the requirements in ASTM F2388-16 are sufficient.

    Some requirements in the two standards differ in ways that make it difficult to compare their relative stringency. Nevertheless, for these requirements, Commission staff believes that ASTM F2388-16 arguably is more stringent, the incident data does not demonstrate that the European standard is necessary, or the additional requirements proposed in this NPR are the most effective method of addressing the risk. For example, the stability tests in ASTM F2388-16 and the European standard differ in ways that make them difficult to compare, but the incident data indicates that tip-over incidents are not an issue, which suggests that ASTM F2388-16, to which many manufacturers conform, is adequate. Likewise, the load tests in ASTM F2388-16 and the European standard differ, but staff believes that the ASTM test reflects actual load conditions better. Moreover, this NPR proposes additional, more stringent requirements for this test that are not in either standard.

    Based on these comparisons, CPSC believes that ASTM F2388-16, in general, is more stringent than the European standard and is better tailored to address the hazard patterns evident in the incident data.

    V. ASTM F2388-16 A. History of ASTM F2388-16

    ASTM first approved and published a standard for baby changing products in July 2004, as ASTM F2388-04, Standard Consumer Safety Specification for Baby Changing Tables for Domestic Use. ASTM has revised the voluntary standard several times since then, adding and modifying requirements. Some of the more substantial revisions, to date, include:

    • Expanding the scope of the standard to include changing table products, such as contoured changing pads and add-on changing units;

    • requiring preconditioning before conducting barrier testing on contoured changing pads;

    • marking packaging with the maximum occupant weight; and

    • requiring toy accessories to comply with applicable safety requirements.

    ASTM approved the current version of the standard, ASTM F2388-16, on July 1, 2016.

    B. Description of ASTM F2388-16

    CPSC staff, together with stakeholders on the ASTM subcommittee task group for baby changing products, developed modified and new requirements for ASTM F2388-16 to address the hazards associated with these products. ASTM F2388-16 includes the following key provisions: Scope, terminology, calibration and standardization, general requirements, performance requirements, test methods, marking and labeling, and instructional literature. The following provides an overview of these provisions. To view the complete standard, see the instructions in Section IX. Incorporation by Reference.

    1. Scope

    This section states the scope and intent of the standard.

    2. Terminology

    This section provides definitions of terms specific to the standard.

    3. Calibration and Standardization

    This section provides general instructions for conducting tests.

    4. General Requirements

    This section includes general requirements addressing various safety issues, such as sharp edges and points, small parts, lead in paint, wood parts, openings, changing table attachments to play yards and non-full-size cribs, and toy accessories.

    5. Performance Requirements and Test Methods

    These sections contain performance requirements and associated test methods for baby changing products. The following summarizes key requirements in these sections.

    a. Protective Components: These requirements provide for testing protective components, such as caps and plugs.

    b. Structural Integrity: A changing table must not break or fail any other requirements after applying a specified weight for a set time period. The purpose of this requirement is to test whether changing tables can withstand the loads they will bear. Contoured changing pads and add-on changing units that are sold separately are not subject to this requirement.

    c. Stability: A changing table must not tip over when pushed downward by a specified force on the edge most likely to cause the product to tip over. The purpose of this requirement is to test the changing table's resistance to tipping over if there is weight on the edge of the product. Contoured changing pads and add-on changing units that are sold separately are not subject to this requirement.

    d. Barriers: Baby changing products must include barriers that are integral to the product. These barriers must be on all sides of flat changing surfaces and two sides of contoured surfaces. Barriers must not break or fail any other requirements or allow a test object to fall when holding a rolling test weight at an incline. Contoured changing pads must withstand this test after preconditioning or aging. The purpose of this requirement is to prevent children from rolling off of baby changing products or being injured by damaged barriers.

    e. Retention of Contoured Changing Pads and Add-on Changing Units: Contoured changing pads and add-on changing units must not move more than a specified distance during the barrier testing described above. The purpose of this requirement is to prevent children from falling when they move on baby changing products. Changing table accessories for non-full-size cribs and play yards are not subject to this requirement because they are subject to a similar requirement in another standard.

    f. Entrapment in Enclosed Openings: Any completely-bounded openings that are accessible to children in or near the base of a changing table must meet specified dimension limits for gaps and openings. The purpose of this requirement is to prevent children's heads from becoming entrapped in openings.

    g. Entrapment by Shelves: Any shelf that is not enclosed in doors and that is within a specified distance from the floor must not permit a probe, designed to simulate a child's head, to pass through. The purpose of this requirement is to prevent children from becoming entrapped in shelves on baby changing products.

    6. Permanency of Labels and Warnings

    This section specifies testing and criteria for determining the permanency of labels.

    7. Marking and Labeling

    This section contains various requirements related to warnings, package markings, and labels including content, format, and placement requirements.

    8. Instructional Literature

    This section requires instructions to accompany baby changing products, be easy to read and understand, and include specific content.

    C. Ongoing Revisions of ASTM F2388-16

    ASTM, with the participation of CPSC staff, has continued to review the effectiveness of ASTM F2388-16 in light of incidents and hazard patterns. As a result, ASTM has developed additional requirements that are currently under review. ASTM participants have voted on some of these changes and submitted comments, and the committee reviewing ASTM F2388-16 is working to resolve these comments. The requirements that the Commission proposes in this NPR that are more stringent than the requirements in ASTM F2388-16 are the same as, or similar to, the requirements ASTM is currently reviewing. ASTM has authorized the Commission to print requirements that are the same as, or similar to, those ASTM drafted and is currently reviewing.

    Additionally, an ASTM group, referred to as the ASTM Ad Hoc Wording Task Group, with CPSC staff's input, has reviewed warning requirements, in general, to develop one set of requirements that would be useful for various standards. The ASTM Ad Hoc Wording Task Group developed recommendations for product warnings, particularly focusing on form, to provide effective and uniform warning requirements that can be adapted for various products. The goal of this effort was to have one consistent set of requirements from which ASTM committees could draw and adjust, as necessary, when developing or revising individual product standards. The result of the group's work is a set of recommendations, rather than a formalized standard. The ASTM Ad Hoc Wording Task Group requested ASTM participants' input on these recommendations in early 2016, received feedback, and has since finalized its warning recommendations. However, as the group continues to review issues, it may revise and update these recommendations. The labeling and instructional literature requirements that the Commission proposes in this NPR that differ from those in ASTM F2388-16 are drawn from the ASTM Ad Hoc Wording Task Group's recommendations. ASTM authorized the Commission to publish content from these recommendations in this NPR.

    Because of the ongoing review and revision of ASTM F2388-16 and the ASTM Ad Hoc Wording Task Group's recommendations, the Commission may, after reviewing comments, finalize the rule as proposed in this NPR or incorporate by reference a revised ASTM standard if that standard adopts changes consistent with the requirements that the Commission proposes in this NPR.

    VI. Assessment of ASTM F2388-16

    CPSC staff evaluated ASTM F2388-16 in light of the fatalities, injuries, and non-injury incidents associated with baby changing products that occurred between January 1, 2005 and December 31, 2015 to determine whether the voluntary standard addresses the risk of injury associated with baby changing products or whether a more stringent standard would further reduce the hazards. CPSC believes that ASTM F2388-16 effectively addresses the hazards indicated in the incident data, with the exception of three areas—structural integrity, restraint system integrity, and warnings on labels and in instructional literature. CPSC proposes more stringent requirements for these areas to further reduce the risk of injury associated with baby changing products.

    This section provides CPSC's assessments of how ASTM F2388-16 addresses the hazard patterns shown in the incident data.

    A. Structural Integrity

    There were 119 CPSRMS incidents involving the structural integrity of baby changing products. The most common incidents in this category involved unstable changing tables and collapses, with the majority of incidents (55 of 119) involving changing table surfaces cracking or collapsing. More than half of these reports involved three particular changing table models. Falls resulting from these instability issues or collapses made up the majority of injuries reported through NEISS and 80 percent of the injuries reported through CPSRMS.

    Although most of the reported collapses resulted in minor injuries, such as scrapes and bruises, falls have the potential for serious injuries, such as severe head injuries, which can have long-term effects. As mentioned, some fall injuries have resulted in serious head injuries, such as concussions and fractured skulls, or other fractured bones. Serious head injuries, such as concussions and skull fractures, can cause extensive brain damage and affect development.

    The next most common problem in this category was unstable baby changing products, half of which involved cantilevered changing accessories for play yards tilting under the weight of an occupant. No injuries were reported for these incidents.

    ASTM F2388-16 has two provisions intended to address the structural integrity of changing tables—a stability test and a structural integrity test. The stability test requires a product to remain upright when testers apply a load that is greater than the maximum recommended weight limit for product occupants to the edge most likely to tip over. The structural integrity test requires baby changing products to withstand a specified load for a set amount of time, without damage.

    In addition, ASTM F2388-16 requires baby changing products to have warning labels with specific content about fall hazards, and requires instructions on secure use of contoured changing pads and add-on changing units. ASTM F2388-16 also includes form and placement requirements for warnings and similar content requirements for instructional literature to make the warnings and instructions visible and understandable.

    The stability and structural integrity tests have been in ASTM F2388, in a similar form, since ASTM first published the standard in 2004. However, despite these requirements, the incident data still reveals a high occurrence of structural integrity issues. Likewise, fall incidents continue, despite the warnings required in ASTM F2388-16. Therefore, CPSC believes that more stringent requirements would further reduce the risk of injury from collapses and falls. Section VII. Description of Proposed Changes to ASTM Standard, discusses CPSC's proposed requirements regarding threaded fasteners, secondary support straps, and warnings that address this hazard.

    B. Design

    There were 38 CPSRMS incidents involving design hazards. These issues included children becoming entrapped in gaps between vertical slats and beneath horizontal rails; children pinching their fingers in drawers or doors; and problems with finishes, such as chipped surface coatings. There was also one fatality associated with this hazard pattern, in which a changing accessory restraint strap in a play yard strangled a child.

    Several general requirements in ASTM F2388-16 address this hazard pattern, including provisions on sharp points and edges, small parts, surface coatings, wood parts, and openings. ASTM F2388-16 also includes specific performance requirements for protective components and to prevent entrapments in enclosed openings and shelves. Additionally, ASTM has since revised its play yard standard to address the changing accessory restraint strap hazard.

    Most of the incidents in this category involved accessory components that are common in many other types of furniture and are not accessible to children when they are in the changing table as intended. All of the pinching incidents involved children who were not on the baby changing product and involved the same hazard that is present on numerous other furniture items. Commission staff also found that the gaps in changing tables that have entrapped children's limbs are similar in size and shape to spaces between crib slats. When the Commission reviewed the same entrapment hazard for cribs, it found that reducing opening sizes may not prevent entrapments, but instead, may result in younger children being entrapped or pinched, making it difficult to develop a requirement that would prevent all entrapments.

    Consequently, the Commission believes that ASTM F2388-16 adequately addresses this hazard pattern and more stringent requirements would not further reduce the risk of injury.

    C. Restraint Systems

    There were 14 CPSRMS incidents involving restraint systems, including broken straps, detached straps, loose or broken buckles, and concerns that products did not have restraint systems. Ten of these 14 incidents resulted in actual or potential falls, and one resulted in an injury. One of these reports, and several other fall incident reports, indicated that the caregiver was near the child at the time of the fall, indicating that incidents can occur even when a caregiver is nearby.

    ASTM F2388-16 does not include any requirements regarding restraint systems. It does not require restraint systems in baby changing products, but also does not prohibit them; nor does the standard include any performance requirements for restraint systems that are included with products. There are several factors that support not requiring restraint systems. First, barrier requirements in ASTM F2388-16 address the hazard of children rolling off of baby changing products, serving the same safety purpose as a restraint system. Second, it is difficult to design a restraint system that adequately restrains a child and also allows enough mobility for a caregiver to change the child's diaper. The most effective restraint systems are 3-point and 5-point restraints, which would limit a caregiver's ability to change a child's diaper. And third, restraints may give caregivers a sense of safety that diminishes their attentiveness.

    CPSC believes that ASTM F2388-16 requirements, particularly regarding barriers, adequately address the risks that restraint systems are designed to mitigate. Accordingly, it is not necessary to require restraint systems on baby changing products. Therefore, the Commission is not proposing a more stringent requirement to mandate the presence of restraint systems on baby changing products. However, the incident data suggests that when a restraint system is present, caregivers expect it to be effective. If caregivers expect restraints to be effective, they are likely to rely on them, necessitating that the restraints function effectively when included on a product.

    Because there are numerous incidents involving restraint systems breaking during normal use, the Commission considers the existing absence of restraint system requirements to be inadequate. As such, when restraints are provided, the Commission believes that more stringent requirements regarding restraint system integrity would further reduce the risk of injury. Section VII. Description of Proposed Changes to ASTM Standard, discusses CPSC's proposed requirements regarding restraint systems.

    D. Miscellaneous

    There were eight CPSRMS incidents involving miscellaneous issues with baby changing products. These reports included complaints of chemical odors and caregivers using baby changing products as sleep products. Each of the five reported deaths related to baby changing products involved children sleeping on the products. In three of these deaths, caregivers placed the child in the changing accessory of a play yard to sleep. In all three cases, the investigatory reports suggest that consumers may view baby changing products as suitable for sleep because parents and law enforcement personnel, in reporting these incidents, mistakenly referred to the play yard changing accessories as “cribs” or “bassinets.”

    ASTM F2388-16 addresses the chemical content of baby changing products, requiring compliance with 16 CFR part 1303, which bans paint containing lead. Given this requirement, the low incidence of issues, and no injuries involving odors or chemicals, the Commission believes that ASTM F2388-16 adequately addresses this issue.

    With respect to caregivers using baby changing products as sleep products, ASTM F2388-16 does not include any requirements to address this safety issue. However, five deaths resulted from children sleeping on baby changing products, which is not their intended use. The Commission believes that more stringent requirements are necessary to reduce the risk of injury associated with this hazard. Section VII. Description of Proposed Changes to ASTM Standard, discusses CPSC's proposed requirements regarding warnings and instructional literature that would address this hazard.

    E. Undetermined

    Three CPSRMS reports involving baby changing products did not provide sufficient information for CPSC to determine how the incidents occurred. Thus, the Commission cannot assess the effectiveness of ASTM F2388-16 in addressing these issues.

    VII. Description of Proposed CPSC Standard for Baby Changing Products

    The proposed rule would create part 1235, titled, Safety Standard for Baby Changing Products. As explained, the Commission believes that ASTM F2388-16 effectively addresses the safety hazards associated with baby changing products, with the exception of structural integrity, restraint system integrity, and warnings on labels and in instructional literature. For this reason, the Commission proposes to incorporate by reference ASTM F2388-16, with modified requirements for structural integrity, restraint system integrity, and warnings on labels and in instructional literature. This section discusses the proposed modifications.

    A. Structural Integrity

    Based on the incident data, CPSC believes that a more stringent standard for structural integrity than what is in ASTM F2388-16 would further reduce the risk of injury from collapses and falls from baby changing products. To identify requirements that would address these hazards, Commission staff reviewed incident data, evaluated design features common in baby changing products involved in incidents, and tested various baby changing products. Based on this information, Commission staff, together with ASTM, developed two provisions regarding threaded fasteners and secondary support straps to improve the structural integrity of baby changing products. Additionally, CPSC staff developed requirements for warnings in labels and instructional literature to address these issues.

    1. Threaded Fasteners

    Commission staff noted that many of the baby changing products involved in collapse incidents required consumers to assemble the products using self-tapping threaded fasteners, such as wood or sheet metal screws. Threaded fasteners can be difficult to install properly, and installing them incorrectly or attempting to install them multiple times can make the assembled product unstable. Multiple attempts to install threaded fasteners can strip the fastener; an over-tightened threaded fastener may crack the part it is attached to; and an under-tightened threaded fastener can create an insecure connection between parts. These issues are particularly likely with durable products, such as baby changing products, which a consumer may disassemble and reassemble for use with multiple children. Several ASTM standards for durable children's products have recognized the potential for consumers to install threaded fasteners improperly, resulting in unstable products, and certain standards prohibit them in key structural elements that consumers assemble.

    For these reasons, the Commission proposes additional requirements that would provide for secure connections between fasteners and key structural elements of changing tables and products. Specifically, the Commission proposes to:

    • Prohibit the use of threaded fasteners on key structural elements assembled by consumers;

    • require a means of preventing manufacturer-installed metal threaded fasteners used in key structural elements from loosening (such as with lock washers); and

    • require a means of preventing manufacturer-installed metal inserts in key structural elements from loosening (such as by gluing).

    The Commission proposes these limits for key structural elements, such as primary changing surface supports and side, end, base, and leg assemblies to address the stability of components that support the weight of occupants. CPSC believes that these more stringent standards would further reduce the risk of injury associated with baby changing products collapsing.

    2. Secondary Support Straps

    Commission staff examined many of the baby changing products involved in reported incidents through photographs, by collecting some of the products, and by purchasing changing tables from consumers to examine their post-use condition. Through these examinations, staff observed that several consumers had not installed secondary support straps at all, or had installed them improperly. A secondary support strap is a metal band that runs under the center of the changing surface to provide additional support. Secondary support straps are generally one of the last components that consumers install when assembling baby changing products. If a consumer does not install the strap, or installs the strap incorrectly, the product does not have the added support this feature provides to enhance the product's structural integrity.

    To accurately test the structural integrity of baby changing products, the Commission believes that structural integrity testing should reflect the least structurally sound condition the product may be in when consumers use it. Given that consumers often do not install secondary support straps or install them incorrectly, products should be tested without consumer-installed secondary support straps attached. Therefore, the Commission proposes to adopt the structural integrity testing required in ASTM F2388-16, but modify the test to specify that consumer-installed secondary support straps not be installed for the test. CPSC believes that this more stringent standard would further reduce the risk of injury associated with baby changing product collapses.

    B. Restraint Systems

    ASTM F2388-16 does not require or prohibit restraint systems on baby changing products and does not contain any performance requirements for restraint systems that are included with these products. As discussed, although the Commission does not believe it is necessary to require restraint systems for baby changing products, the Commission does believe that a performance standard that requires restraint systems to be effective and durable when they are included with a baby changing product would further reduce the risk of injury from falls.

    To develop requirements for restraint systems that would address the hazard pattern evident in the incident data, CPSC staff conducted lab testing of products and worked with an ASTM task group to review the incident data and ASTM standards addressing restraint systems in other durable children's products. As a result of this effort, the group developed a performance test for restraint systems that identifies baby changing products that were involved in restraint system failures. This test requires any restraint provided with a baby changing product to be secured on a CAMI dummy and pulled in four directions anticipated during normal use with a 30 pound force. To pass this performance standard, straps and buckles must not break or separate from baby changing products more than 1 inch from their initial adjustment positions. CPSC believes that this more stringent standard would further reduce the risk of injury associated with restraint systems, by ensuring that those included with baby changing products function effectively.

    C. Warnings in Labels and Instructional Literature

    As discussed, the most commonly-reported incidents involving baby changing products were falls, and the most common cause of fatalities was children sleeping on baby changing products. ASTM F2388-16 requires warnings about falls on labels and in instructional literature, but the standard does not require any warnings about the suffocation hazard when children sleep on baby changing products. Considering the frequency and severity of reported incidents and deaths, CPSC believes that more stringent requirements would further reduce these risks of injury and death.

    To develop appropriate warning requirements, Commission staff examined incident data and research on effective warnings, and worked with the ASTM Ad Hoc Wording Task Group. To further reduce the risk of injury associated with falls and children sleeping on baby changing products, the Commission proposes additional content and form provisions for on-product warning labels and parallel requirements for instructional literature. Tab E of CPSC staff's briefing package for this proposed rule includes additional details about these proposed requirements and the rationale for adding them. The briefing package is available at: http://www.cpsc.gov/Newsroom/FOIA/Commission-Briefing-Packages/.

    1. Content

    Section 9 of ASTM F2388-16 requires baby changing products to be labeled with a warning that states: “FALL HAZARD—To prevent death or serious injury, always keep child within arm's reach.” Additionally, removable pads that are intended to be attached to a support surface must warn users: “Always secure this pad to the support surface by [insert instructions on securing the changing pad]. See instructions.” And for contoured changing pads and add-on changing units sold separately, warnings must specify products they attach to or specify that the support surface should be “level, stable, and structurally sound,” along with the minimum support surface dimensions. Section 10 of ASTM F2388-16 requires the same warnings to appear in instructional literature for baby changing products.

    ASTM F2388-16 does not include warning requirements regarding children sleeping on baby changing products.

    To develop proposed warning language, Commission staff reviewed information developed through research on the content of warnings, assessed other standards, and reviewed the ASTM Ad Hoc Wording Task Group recommendations. Literature and guidelines about warnings consistently recommend that warnings include:

    • A description of the hazard;

    • information about the consequences of exposure to the hazard; and

    • instructions about appropriate hazard-avoidance behaviors.

    Studies indicate that when a person receives information about a hazard, its consequences, and mitigating actions, that information motivates appropriate behavior.

    The Commission believes that the warning statements in ASTM F2388-16 lack important details regarding fall and suffocation hazards, their consequences, and appropriate avoidance behaviors. Moreover, the Commission believes that the warning statements in the standard provide only a vague description of the types of injuries that may occur from falls and the statements do not refer to suffocation at all. The Commission believes that strengthening the requirements in ASTM F2388-16 would further reduce the risk of injury associated with falls and suffocation. Additionally, the Commission believes that these proposed changes would improve readability and consistency across standards. CPSC developed the following proposed language to describe the specific hazards, consequent injuries and dangers, and precise actions that can help reduce the likelihood of falls and suffocation. CPSC proposes to require the following warning label to appear on baby changing products:

    Fall hazard. Children have suffered serious injuries after falling from changing [tables/pads/areas]. Falls can happen quickly.

    • STAY in arm's reach.

    Manufacturers will select one of the terms in brackets, or a similar term, that most-appropriately describes the particular product. Similarly, CPSC proposes to require the following warning label to appear on contoured changing pads that attach to a support surface and changing products that attach to play yards:

    Fall hazard. Children have suffered serious injuries after falling from changing [tables/pads/areas]. Falls can happen quickly.

    • STAY in arm's reach.

    • ALWAYS secure this pad to the support surface by [manufacturer's instructions for securing the changing product].

    Suffocation hazard. Babies have suffocated while sleeping on changing pads. Changing pad is not designed for safe sleeping.

    • NEVER allow baby to sleep on changing pad.

    Manufacturers will select one of the terms in brackets, or a similar term, that most-appropriately describes the particular product. The Commission proposes to require the same modifications to the content of the warnings in instructional literature.

    Additionally, the Commission proposes minor changes to the language in section 9 of ASTM F2388-16, as detailed in the proposed regulatory text, to make the warnings clearer, and thereby, more effective and consistent with similar standards.

    2. Form

    Research indicates that the form of a warning can affect the extent to which consumers notice and read the warning and can communicate the seriousness of a hazard, which can affect compliance with the warning. ASTM F2388-16 does not include any form requirements for on-product warnings, apart from text size, and does not include any form requirements for warnings in instructional literature.

    As discussed, Commission staff worked closely with the ASTM Ad Hoc Wording Task Group to develop recommendations for product warnings, particularly focused on form, to provide effective and uniform warning requirements. The requirements for warnings on labeling and in instructional literature that the Commission is proposing in this NPR are drawn from the ASTM Ad Hoc Wording Task Group's recommendations.

    The ASTM Ad Hoc Wording Task Group's recommendations are largely consistent with ANSI Z535.4, Product Safety Signs and Labels (ANSI Z535.4; available at: http://www.ansi.org/), which provides guidance on warning label designs, specifically addressing the design, application, use, and placement of on-product warning labels. ANSI Z535.4 is the primary U.S. voluntary consensus standard for product safety signs and labels and CPSC's Division of Human Factors staff uses the standard regularly. ANSI Z535.4 includes requirements about signal words; sign and label format, arrangement, and placement; word messages; colors; borders; letter styles and sizes; and the durability of labels.

    CPSC considered research on effective forms for warnings, including the requirements in ANSI Z535.4, in developing the proposed form requirements. Commission staff and the ASTM Ad Hoc Wording Task Group modified these requirements to account for the unique nature of durable nursery products, the wide range of such products, industry concerns, and insights from CPSC's past rulemakings on durable nursery products. The resulting recommendations and the requirements the Commission proposes in this NPR are designed to increase consumer attention to warnings, improve comprehension, and increase behaviors that would minimize hazards. These proposed requirements include:

    • Warnings must conform to the 2011 edition of ANSI Z535.4, which is incorporated by reference into the regulations with certain exceptions;

    • warnings must be easy to read and understand, and be in English;

    • warnings must be permanent;

    • additional markings or labels must not contradict the required warning information or be confusing or misleading; and

    • the specific typefaces, size, alignment, layout, and text formats to use to facilitate readability.

    The Commission believes that these requirements would further reduce the risk of injury associated with falls and suffocation, by making the warnings regarding these risks more effective. The Commission proposes the same design requirements for on-product warnings and warnings in instructional literature, except that instructional literature need not meet the color requirements in ANSI Z535.4.

    Additionally, CPSC proposes to include a note in the regulatory text, referencing ANSI Z535.6, Product Safety Information in Product Manuals, Instructions, and Other Collateral Materials (ANSI Z535.6; available at: http://www.ansi.org/), for optional additional guidance about the design of product safety messages in instructional literature. CPSC does not propose to require compliance with ANSI Z535.6, but the standard may offer regulated entities additional useful information for developing effective warnings in instructional literature. Although the Commission believes compliance with this standard is advisable, product instructions vary greatly, depending on the product, purpose, content, length, and other factors. Thus, the Commission believes it is appropriate to reference ANSI Z535.6, but not mandate compliance with it.

    3. Placement

    ASTM F2388-16 requires warning labels to be “conspicuous,” that is, visible to a caretaker standing in a place normally associated with changing a diaper. The Commission believes that this requirement is adequate because it provides caregivers the opportunity to see a warning during routine use of the product and just before they would leave a child unattended, sleeping, or out of their reach on the baby changing product. This requirement is also consistent with ANSI Z535.4.

    D. Miscellaneous Additional Requirements

    The Commission also proposes several additional minor changes that would further reduce the risk of injury associated with baby changing products and provide greater clarity or detail regarding requirements in ASTM F2388-16. These include:

    • Adding definitions for “key structural elements” and “non-rigid add-on changing unit accessory”;

    • adding a provision to prohibit components attached by screws from separating more than 0.04 in. (1 mm) after structural integrity testing; and

    • requiring a marking including both the address and telephone number of the manufacturer, distributor, or seller, rather than one or the other.

    The proposed definitions would add clarity to the standard and are relevant to the additional requirements. “Key structural elements” are central to the proposed requirements regarding threaded fasteners, and specific requirements for “non-rigid add-on changing unit accessories” are in the proposed labeling provisions. The separation limit would further reduce the risk of injury associated with structural integrity issues demonstrated in the incident data. Providing the address, as well as the telephone number for firms that supply baby changing products would provide the Commission and consumers with more complete contact information, in case it is necessary to contact a supplier. This would expedite any safety measures necessary and thereby, reduce the risk of safety hazards.

    VIII. Amend 16 CFR Part 1112 To Include NOR for Baby Changing Products Standard

    Section 14 of the CPSA establishes requirements for product testing and certification. Manufacturers of products that are subject to a consumer product safety rule under the CPSA or another rule the Commission enforces must certify, based on product testing, that their product complies with all such rules. 15 U.S.C. 2063(a)(1). Additionally, manufacturers of children's products that are subject to a children's product safety rule must have these products tested by a third party conformity assessment body that CPSC has accredited, and manufacturers must certify that their products comply with all applicable children's product safety rules. Id. at 2063(a)(2). The Commission must publish an NOR for the accreditation of third party conformity assessment bodies to assess conformity with a children's product safety rule. Id. at 2063(a)(3). Because the proposed rule is a children's product safety rule, if the Commission issues 16 CFR part 1235, Safety Standard for Baby Changing Products, as a final rule, the CPSC must also issue an NOR.

    The Commission published a final rule, codified at 16 CFR part 1112, titled, Requirements Pertaining to Third Party Conformity Assessment Bodies, which established requirements for accreditation of third party conformity assessment bodies to test for conformity with children's product safety rules in accordance with the CPSA. 78 FR 15836 (Mar. 12, 2013). Part 1112 also codifies all of the NORs that the Commission previously issued.

    NORs for new children's product safety rules, such as the baby changing products standard, require the Commission to amend part 1112. To accomplish this, as part of this NPR, the Commission proposes to amend part 1112 to add baby changing products to the list of children's product safety rules for which CPSC has issued an NOR.

    Test laboratories applying for acceptance as a CPSC-accepted third party conformity assessment body to test for compliance with the proposed standard for baby changing products would be required to meet the third party conformity assessment body accreditation requirements in part 1112. When a laboratory meets the requirements of a CPSC-accepted third party conformity assessment body, the laboratory can apply to CPSC to have 16 CFR part 1235, Safety Standard for Baby Changing Products, included in the laboratory's scope of accreditation of CPSC safety rules listed for the laboratory on the CPSC Web site at: www.cpsc.gov/labsearch.

    IX. Incorporation by Reference

    Section 1235.1 of the proposed rule incorporates by reference ASTM F2388-16 and ANSI Z535.4. The Office of the Federal Register (OFR) has regulations concerning incorporation by reference. 1 CFR part 51. Under these regulations, in the preamble of the NPR, an agency must summarize the incorporated material and discuss the ways in which the material is reasonably available to interested parties or how the agency worked to make the materials reasonably available. 1 CFR 51.5(a). In accordance with the OFR's requirements, Section V. ASTM F2388-16 of this preamble summarizes the provisions of ASTM F2388-16 and Section VII. Description of Proposed Changes to ASTM Standard summarizes the provisions of ANSI Z535.4 that the Commission proposes to incorporate by reference.

    ASTM F2388-16 is copyrighted material. By permission of ASTM, interested parties may view the standard as a read-only document during the comment period of this NPR at: http://www.astm.org/cpsc.htm. Interested parties may also purchase a copy of ASTM F2388-16 from ASTM International, 100 Bar Harbor Drive, P.O. Box 0700, West Conshohocken, PA 19428; http://www.astm.org/cpsc.htm.

    ANSI Z535.4 is also copyrighted material. Interested parties may purchase a copy of ANSI Z535.4 from the American National Standards Institute (ANSI), 1899 L Street NW., 11th Floor, Washington, DC 20036, or through the ANSI Web site at: https://www.ansi.org.

    Interested parties may also inspect copies of the standard at CPSC's Office of the Secretary, U.S. Consumer Product Safety Commission, Room 820, 4330 East-West Highway, Bethesda, MD 20814, telephone 301-504-7923.

    X. Effective Date

    The Administrative Procedure Act (5 U.S.C. 551-559) generally requires that the effective date of a rule be at least 30 days after publication of the final rule. 5 U.S.C. 553(d). To allow time for baby changing products to come into compliance with the standard, the Commission proposes that the standard become effective 6 months after publication of the final rule in the Federal Register. Without evidence to the contrary, CPSC generally considers 6 months to be sufficient time for suppliers to come into compliance with a new standard, and 6 months is typical for other CPSIA section 104 rules. Six months is also the period that the Juvenile Products Manufacturers Association (JPMA) typically allows for products in its certification program to transition to a new standard after publication.

    The Commission also proposes that the amendment to part 1112 become effective 6 months after publication of the final rule.

    The Commission requests comments on the proposed effective date.

    XI. Regulatory Flexibility Act A. Introduction

    The Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612) requires agencies to consider the impact of proposed rules on small entities, including small businesses. Section 603 of the RFA requires the Commission to prepare an initial regulatory flexibility analysis (IRFA) and make it available to the public for comment when the NPR is published. The IRFA must describe the impact of the proposed rule on small entities and identify significant alternatives that accomplish the statutory objectives and minimize any significant economic impact of the proposed rule on small entities. Specifically, the IRFA must discuss:

    • The reasons the agency is considering the action;

    • the objectives of and legal basis for the proposed rule;

    • the small entities that would be subject to the proposed rule and an estimate of the number of small entities that would be impacted;

    • the reporting, recordkeeping, and other requirements of the proposed rule, including the classes of small entities subject to it and the skills necessary to prepare the reports or records; and

    • the relevant federal rules that may duplicate, overlap, or conflict with the proposed rule.

    5 U.S.C. 603.

    This section summarizes the IRFA for this proposed rule. The complete IRFA is available in Tab F of staff's briefing package for this proposed rule, available at: http://www.cpsc.gov/Newsroom/FOIA/Commission-Briefing-Packages/. To summarize, the Commission cannot rule out a significant economic impact for 40 of the 59 (68 percent) small entities that supply baby changing products in the U.S. market.

    B. Market Description

    CPSC identified 85 firms that supply baby changing products to the U.S. market. Seventy-one of these firms are domestic (57 manufacturers, 12 importers, one wholesaler, and one retailer), and 14 are foreign (12 manufacturers, one importer, and one retailer). Eighty-one of these firms market their products to consumers, while seven also market their products for commercial daycare use. Fifty-six offer multiple types of baby changing products.

    C. Reason for Agency Action, Objectives, and Legal Basis for Proposed Rule

    Section 104 of the CPSIA requires the CPSC to promulgate mandatory standards for durable infant or toddler products that are substantially the same as a voluntary standard or more stringent than the voluntary standard if the Commission determines that more stringent requirements would further reduce the risk of injury associated with the product. As discussed in Section I. Background and Statutory Authority, baby changing products are durable infant or toddler products.

    D. Description of the Proposed Rule

    CPSC proposes to adopt ASTM F2388-16 with modifications to the structural integrity requirements, restraint system requirements, and provisions on warnings on labels and instructional literature. Section V. ASTM F2388-16 of this preamble discusses key provisions of ASTM F2388-16 and Section VII. Description of Proposed Changes to ASTM Standard discusses the proposed requirements that are more stringent than ASTM F2388-16. To help evaluate the economic impact of the proposed rule, Commission staff contacted nine industry members who would be impacted by the rule, and three responded.

    E. Other Relevant Federal Rules

    CPSC has not identified any federal or state rules that would duplicate, overlap or conflict with the proposed rule.

    F. Impact of the Proposed Rule on Small Businesses

    Under U.S. Small Business Administration (SBA) guidelines, a baby changing product manufacturer is a small business if it has 500 or fewer employees; importers and wholesalers are small businesses if they have 100 or fewer employees. CPSC analyzed domestic firms because SBA guidelines and definitions apply to U.S. entities. CPSC identified 85 firms that currently market baby changing products in the United States; 71 are domestic firms. Fifty-nine of these firms (49 manufacturers, 9 importers, and 1 wholesaler) are small businesses, based on the SBA guidelines and available information about the firms.

    To determine the extent to which the proposed rule would impact small businesses, the Commission identified firms that comply with ASTM F2388-16 by considering the following factors: JPMA certification, the firm's claims of compliance, active participation in ASTM standards development, and CPSC compliance testing. Table 2 lists the number of firms by location, size, type, and compliance:

    Table 2—Firms That Market Baby Changing Products in the U.S. Category Number of firms Domestic 71 Small 59 Manufacturers 49 Compliant with ASTM F2388 22 Not Compliant with ASTM F2388 27 Importers and Wholesalers 10 Compliant with ASTM F2388 4 Not Compliant with ASTM F2388 6 Large 12 Foreign 14 Total 85

    Looking first at the proposed requirements that would prohibit the use of consumer-installed threaded fasteners in key structural elements, the Commission believes that the overall economic impact of this requirement would be small. CPSC testing indicates that most baby changing products on the market already follow this restriction and non-compliant firms could make inexpensive changes to meet this requirement.

    With respect to structural integrity testing without consumer-installed secondary support straps, it is possible that some firms would incur costs to comply with this requirement. CPSC testing indicates that some products do not pass structural integrity testing without their consumer-installed secondary support straps; however, these products are not currently on the market. The cost of complying would vary, depending on the modifications that a firm adopts.

    Next, the Commission proposes to adopt a structural integrity test for restraints when they are included with a product. The Commission found that approximately 21 percent of baby changing products on the U.S. market include restraints. Through limited testing, staff found that some of these products do not meet the proposed requirement. To comply with the proposed requirement, firms have several low-cost options to reinforce restraints.

    Finally, the Commission is proposing additional requirements for warnings on labels and in instructional literature. All firms would have to modify the wording and format of their warnings to meet these requirements; however, the costs of such changes are generally small, particularly compared to overall firm revenues.

    1. Small Manufacturers With Compliant Baby Changing Products

    Of the 49 small manufacturers, 22 produce baby changing products that comply with ASTM F2388-16, making the economic impact of adopting ASTM F2388-16 small. Additionally, the proposed requirements for threaded fasteners, restraints, and warnings likely would also create only small costs for these manufacturers. Compliant manufacturers are unlikely to use consumer-installed threaded fasteners in key structural components because other children's product standards prohibit them. About 10 of these firms produce at least one baby changing product with restraints, but if their products are not compliant, then the firm can remove the restraints or make other low-cost adjustments. Similarly, the cost to comply with the proposed requirements for warnings is also likely to be low because the additional requirements would merely modify the text and format of the ASTM F2388-16 warnings.

    In contrast, the proposed additional requirement regarding user-installed secondary support straps may result in significant costs. Five of the compliant manufacturers may use consumer-installed secondary support straps. If these products do not pass the structural integrity test without these supports, the cost of modifying the products could range from minimal to great, depending on the product type and the changes employed. Therefore, staff cannot rule out a significant economic impact for the five manufacturers of compliant products that may employ user-installed secondary support straps.

    2. Small Manufacturers With Non-Compliant Baby Changing Products

    Twenty-seven of the 49 small manufacturers produce baby changing products that do not comply with ASTM F2388-16. These firms may incur costs to conform to ASTM F2388-16 and the additional proposed requirements. The Commission does not have sufficient information to determine the extent and cost of these changes. Therefore, the Commission cannot rule out a significant economic impact on these firms.

    3. Third Party Testing Costs for Small Manufacturers

    Under section 14 of the CPSA, if CPSC adopts the proposed requirements, all manufacturers would be subject to the third party testing and certification requirements under 16 CFR part 1107. Third party testing would include any physical and mechanical test requirements, and the cost of obtaining testing would be in addition to the costs of meeting the baby changing products standard.

    Almost half of small baby changing product manufacturers (22 out of 49) already test their products for compliance with ASTM F2388, although not necessarily through a third party laboratory. For these manufacturers, the cost of the proposed rule, with respect to third party testing, would be limited to the difference between the cost of their current testing regimes and the cost of third party tests, which is likely to be low.

    Of the remaining 27 firms that do not currently test their products for compliance with ASTM F2388-16, third party testing could result in a significant economic impact for five firms. Testing costs may exceed 1 percent of gross revenue for these firms if five or fewer samples are tested (assuming high-end, U.S.-based testing costs of $1,200 per model sample). CPSC could not obtain revenue information for all of the small, non-compliant manufacturers. Therefore, CPSC could not evaluate the economic impact for six firms.

    4. Small Importers and Wholesalers With Compliant Baby Changing Products

    CPSC considered the economic impact to importers and wholesalers together because both rely on outside firms to supply the products they distribute to the U.S. market. The four small importers that comply with ASTM F2388-16 would require modifications to meet the proposed additional requirements. However, as discussed, the costs of complying with the additional threaded fastener, restraints, and warning requirements are likely to be low.

    The proposed requirement regarding user-installed secondary support straps, however, could be more costly and possibly require firms to retrofit or redesign their products. Two of the four importers may require modifications to pass structural integrity testing under this requirement. Both firms could eliminate changing products from their product lines without a significant adverse impact, but likely could not use an alternate supplier.

    5. Small Importers and Wholesalers With Non-Compliant Baby Changing Products

    There is insufficient information to rule out a significant impact for any of the five importers and one wholesaler of non-compliant baby changing products. Whether there would be a significant economic impact would depend on the extent of the changes required for these firms to come into compliance and the response of their suppliers, who may pass on the increased costs to the importers and wholesalers.

    Four of the six importers and wholesalers with non-compliant products do not appear to have direct ties to their suppliers and may select alternative suppliers. Three of these firms supply numerous products. Thus, they could stop supplying baby changing products. However, one firm only supplies baby changing products, so there would be a significant economic impact if that firm left the market.

    The remaining two firms are tied to their foreign suppliers, so they are not likely to choose alternative suppliers. However, these foreign suppliers may comply with the proposed requirements to continue to market their products in the United States. Alternatively, these firms may stop selling baby changing products altogether because they represent only a small portion of their product lines. Without sales revenues, CPSC could not determine whether exiting the baby changing products market would generate significant economic impacts.

    6. Third Party Testing Costs for Small Importers and Wholesalers

    Importers and wholesalers would be subject to costs similar to manufacturers' costs if their foreign suppliers do not obtain third party testing. Four importers already test their products to verify compliance with the ASTM standard. As such, their costs would be limited to the incremental costs of third party testing over their current testing regimes.

    There may be significant costs for two or three firms that do not comply with the ASTM standard. For two firms, the cost of testing as few as two units per model could exceed 1 percent of their gross revenues. For a third firm, testing costs may exceed 1 percent of its gross revenue, depending on how many units per model the firm tests. CPSC was unable to obtain revenue data for one small, non-compliant wholesaler, so could not examine the size of the impact on that firm.

    7. Summary of Impacts

    The Commission identified 59 small firms that market baby changing products in the United States, of which 49 are domestic manufacturers and 10 are domestic importers or wholesalers. Of the 49 small manufacturers, 17 are unlikely to experience significant economic impacts if the Commission adopts the proposed rule. However, CPSC cannot rule out a significant economic impact for the remaining 32 manufacturers. For two of the small importers and wholesalers, it is likely that the proposed rule would not have a significant economic impact. However, it is possible that the proposed rule would have a significant economic impact on the remaining eight small importers and wholesalers. Therefore, to summarize, CPSC cannot rule out a significant economic impact for 40 of the 59 small firms (68 percent) operating in the U.S. baby changing products market.

    8. Impacts of Test Laboratory Accreditation Requirements on Small Laboratories

    In accordance with section 14 of the CPSA, all children's products that are subject to a children's product safety rule must be tested by a third party conformity assessment body that has been accredited by CPSC. These third party conformity assessment bodies test products for compliance with applicable children's product safety rules. Testing laboratories that want to conduct this testing must meet the NOR for third party conformity testing. CPSC has codified NORs in 16 CFR part 1112. CPSC proposes to amend 16 CFR part 1112 to establish an NOR for testing laboratories to test for compliance with the proposed baby changing products standard. This section assesses the impact of this proposed amendment on small laboratories.

    CPSC conducted a Final Regulatory Flexibility Analysis (FRFA) when it adopted part 1112. 78 FR 15836 (Mar. 12, 2013). The FRFA concluded that the accreditation requirements would not have a significant adverse impact on a substantial number of small laboratories because no requirements were imposed on laboratories that did not intend to provide third party testing services. The only laboratories that were expected to provide such services were laboratories that anticipated receiving sufficient revenue from the mandated testing to justify accepting the requirements as a business decision.

    For the same reasons, including the NOR for baby changing products in part 1112 would not have a significant adverse impact on small laboratories. Moreover, CPSC expects that only a small number of laboratories would request accreditation to test baby changing products, based on the number of laboratories that have applied for CPSC accreditation to test other juvenile products. Most laboratories would already have accreditation to test for conformance to other juvenile product standards; accordingly, the only cost would be to add the baby changing products standard to their accreditation. Test laboratories have indicated that this cost is extremely low when they are already accredited for other CPSIA section 104 rules. Therefore, the Commission certifies that the NOR for the baby changing products standard will not have a significant impact on a substantial number of small entities.

    G. Alternatives

    At least three alternatives are available to minimize the economic impact on small entities supplying baby changing products, while also complying with the direction of section 104 of the CPSIA.

    First, the Commission could adopt ASTM F2388-16, with no modifications. Section 104 of the CPSIA directs the Commission to promulgate a standard that is either substantially the same as the voluntary standard or more stringent if the Commission determines that would further reduce the risk of injury associated with the product. Therefore, adopting ASTM F2388-16 with no modifications is the least stringent rule CPSC could adopt. This alternative would reduce the economic impact on all of the small businesses supplying baby changing products to the U.S. market. Although choosing this alternative would not reduce the testing costs associated with the rule, this alternative would eliminate the economic impact of the additional proposed requirements. This option would eliminate the cost of complying with the additional requirements for the 22 small domestic manufacturers and four small importers and wholesalers with baby changing products that conform to ASTM F2388-16. However, adopting ASTM F2388-16 with no modifications would not further reduce the risks associated with falls and suffocations.

    Second, the Commission could adopt ASTM F2388-16 with the proposed modifications, except for the requirement regarding secondary support straps. This additional requirement is likely to have the largest economic impact, and removing it would reduce the impact on 11 small suppliers (9 small manufactures and 2 small importers). However, without this requirement, the standard may not reduce the risk of injuries associated with falls as effectively.

    Third, the Commission could set a later effective date for the final rule. A later effective date would reduce the economic impact on firms in two ways. First, firms would be less likely to experience a lapse in production or imports if they are unable to modify their products and secure third party testing within the required timeframe. Second, firms could spread costs over a longer period, thereby reducing annual costs and the present value of total costs. CPSC requests comments on the 6-month effective date.

    H. Requested Information

    The Commission would find comments on the following issues particularly helpful:

    • The changes, costs, and time needed to conform to ASTM F2388-16;

    • how affected firms would modify their products, the associated costs, and the time needed to meet each of the proposed requirements regarding:

    ○ Threaded fasteners;

    ○ consumer-installed secondary support straps;

    ○ restraint system integrity; and

    ○ labels and instructional literature;

    • whether a particular effective date, or time of year would reduce the costs associated with the proposed requirements;

    • whether the costs of complying with the proposed ban of consumer-installed threaded fasteners on key structural elements would be “economically significant” (i.e., amount to an impact greater than 1 percent of revenue or similar economic benchmarks);

    • the types of baby changing products that include user-installed secondary support straps and their prevalence in the U.S. market;

    • the extent to which firms would remove restraints entirely, rather than conform to the proposed requirement, and the associated costs;

    • testing costs and incremental costs of third party testing (i.e., how much moving from a voluntary to a mandatory third party testing regime would add to testing costs in total and on a per-test basis); and

    • the number of products that must be tested to provide a “high degree of assurance” with respect to third party testing.

    XII. Environmental Considerations

    The Commission's regulations outline the types of agency actions that require an environmental assessment (EA) or environmental impact statement (EIS). Rules that have “little or no potential for affecting the human environment” fall within a “categorical exclusion” under the National Environmental Policy Act (NEPA; 42 U.S.C. 4231-4370h) and the regulations implementing NEPA (40 CFR parts 1500-1508) and do not normally require an EA or EIS. As stated in 16 CFR 1021.5(c)(1), rules or safety standards that provide design or performance requirements for products fall within that categorical exclusion. Because this proposed rule would create design and performance requirements for baby changing products, the proposed rule falls within the categorical exclusion. Thus, no EA or EIS is required.

    XIII. Paperwork Reduction Act

    This proposed rule contains information collection requirements that are subject to public comment and review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA; 44 U.S.C. 3501-3521). Under 44 U.S.C. 3507(a)(1)(D), an agency must publish the following information:

    • A title for the collection of information;

    • a summary of the collection of information;

    • a brief description of the need for the information and the proposed use of the information;

    • a description of the likely respondents and proposed frequency of response to the collection of information;

    • an estimate of the burden that shall result from the collection of information; and

    • notice that comments may be submitted to OMB.

    In accordance with this requirement, the Commission provides the following information:

    Title: Safety Standard for Baby Changing Products.

    Description: The proposed rule would require each baby changing product to comply with ASTM F2388-16, with additional requirements regarding structural integrity, restraint system integrity, and warnings in labels and instructional literature. Sections 9 and 10 of ASTM F2388-16 contain requirements for labels and instructional literature. These requirements fall within the definition of a “collection of information” provided in the PRA at 44 U.S.C. 3502(3).

    Description of Respondents: Persons who manufacture or import baby changing products.

    Estimated Burden: CPSC estimates the burden of this collection of information as follows:

    Table 3—Estimated Annual Reporting Burden 16 CFR section Number of
  • respondents
  • Frequency of responses Total annual
  • responses
  • Hours per
  • response
  • Total
  • burden
  • hours
  • 1235.3 85 6 510 1 510

    CPSC's estimate is based on the following:

    Section 9.1.1 of ASTM F2388-16 requires that the name and place of business (mailing address) or the telephone number of the manufacturer, distributor, or seller appear on each baby changing product and its retail package. The additional requirements proposed in this NPR would require both the specified address information and the telephone number, instead of a choice between the two. Section 9.1.2 of ASTM F2388-16 requires a code mark or other product identification on each product and retail package that indicates the date (month and year) of manufacture.

    Eighty-five known entities supply baby changing products to the U.S. market and may need to modify their existing labels to comply with ASTM F2388-16. CPSC estimates that the time required to make these modifications is about 1 hour per model. Based on an evaluation of supplier product lines, each entity supplies an average of six models of baby changing products. Therefore, the estimated burden associated with labels is 1 hour per model × 85 entities × 6 models per entity = 510 hours. CPSC estimates the hourly compensation for the time required to create and update labels is $33.02 (U.S. Bureau of Labor Statistics, “Employer Costs for Employee Compensation,” Mar. 2016, Table 9, total compensation for all sales and office workers in goods-producing private industries: http://www.bls.gov/ncs/). Therefore, the estimated annual cost associated with the proposed labeling requirements is $16,840 ($33.02 per hour × 510 hours = $16,840). No operating, maintenance, or capital costs are associated with the collection.

    Section 10.1 of ASTM F2388-16 requires instructions to be supplied with baby changing products. Baby changing products generally require use and assembly instructions. As such, products sold without use and assembly instructions would not compete successfully with those that supply this information. Under OMB's regulations, the time, effort, and financial resources necessary to comply with a collection of information incurred by parties in the “normal course of their activities” are excluded from a burden estimate when an agency demonstrates that the disclosure activities required are “usual and customary.” 5 CFR 1320.3(b)(2). CPSC is unaware of baby changing products that generally require use or assembly instructions but lack such instructions. Therefore, CPSC estimates that no burden hours are associated with section 10.1 of ASTM F2388-16 because any burden associated with supplying instructions with baby changing products would be “usual and customary,” and thus, excluded from “burden” estimates under OMB's regulations.

    Based on this analysis, the proposed standard for baby changing products would impose a burden to industry of 510 hours at a cost of $16,840 annually.

    CPSC has submitted the information collection requirements of this rule to OMB for review in accordance with PRA requirements. 44 U.S.C. 3507(d). CPSC requests that interested parties submit comments regarding information collection to the Office of Information and Regulatory Affairs, OMB (see the ADDRESSES section at the beginning of this NPR).

    Pursuant to 44 U.S.C. 3506(c)(2)(A), the Commission invites comments on:

    • Whether the proposed collection of information is necessary for the proper performance of CPSC's functions, including whether the information will have practical utility;

    • the accuracy of CPSC's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

    • ways to enhance the quality, utility, and clarity of the information the Commission proposes to collect;

    • ways to reduce the burden of the collection of information on respondents, including the use of automated collection techniques, when appropriate, and other forms of information technology; and

    • the estimated burden hours associated with modifying labels and instructional literature, including any alternative estimates.

    XIV. Preemption

    Under section 26(a) of the CPSA, no state or political subdivision of a state may establish or continue in effect a requirement dealing with the same risk of injury as a federal consumer product safety standard under the CPSA unless the state requirement is identical to the federal standard. 15 U.S.C. 2075(a). States or political subdivisions of states may, however, apply to the Commission for an exemption, allowing them to establish or continue such a requirement if the state requirement provides a significantly high degree of protection from the risk of injury and does not unduly burden interstate commerce. Id. at 2075(c).

    One of the functions of the CPSIA was to amend the CPSA, adding several provisions to CPSA, including CPSIA section 104 in 15 U.S.C. 2056a. As such, consumer product safety standards that the Commission creates under CPSIA section 104 are covered by the preemption provision in the CPSA. Consequently, the rule proposed in this NPR would be a federal consumer product safety standard, and the preemption provision in section 26 of the CPSA would apply.

    XV. Request for Comments

    This NPR begins a rulemaking proceeding under section 104(b) of the CPSIA to issue a consumer product safety standard for baby changing products and to amend part 1112 to add baby changing products to the list of children's product safety rules for which CPSC has issued an NOR. We invite all interested persons to submit comments on any aspect of the proposed mandatory safety standard for baby changing products and on the proposed amendment to part 1112. Specifically, the Commission requests comments on the following:

    • The requirements in ASTM F2388-16, including their effectiveness in addressing the risks of injury associated with baby changing products and the costs of complying with these requirements;

    • the additional requirements proposed for structural integrity, specifically regarding threaded fasteners and secondary support straps, including their effectiveness in addressing the risk of injury associated with collapses and falls and the costs of complying with these requirements;

    • the additional requirement proposed for restraint systems, including its effectiveness in addressing the risk of injury associated with restraints and falls and the costs of complying with this requirement;

    • the additional requirements proposed for labels and instructional literature, including their effectiveness at addressing the hazards associated with falls and suffocation and the costs of complying with these requirements;

    • the costs to small businesses associated with the requirements proposed in this NPR, including the costs to comply with the proposed additional requirements for structural integrity, restraint system integrity, and warnings on labels and in instructional literature;

    • alternatives to the proposed requirements that would reduce impacts on small businesses;

    • the proposed effective date and whether an extended effective date would further mitigate the impact on small businesses and to what extent; and

    • any additional information relevant to the issues discussed in this NPR and the proposed requirements.

    During the comment period, ASTM F2388-16 and ANSI Z535.4 are available for review. Please see Section IX. Incorporation by Reference for instructions on viewing them.

    Please submit comments in accordance with the instructions in the ADDRESSES section at the beginning of this NPR.

    List of Subjects 16 CFR Part 1112

    Administrative practice and procedure, Audit, Consumer protection, Reporting and recordkeeping requirements, Third party conformity assessment body.

    16 CFR Part 1235

    Consumer protection, Imports, Incorporation by reference, Infants and children, Labeling, Law enforcement, and Toys.

    For the reasons discussed in the preamble, the Commission proposes to amend Title 16 of the Code of Federal Regulations as follows:

    PART 1112—REQUIREMENTS PERTAINING TO THIRD PARTY CONFORMITY ASSESSMENT BODIES 1. The authority citation for part 1112 continues to read as follows: Authority:

    15 U.S.C. 2063; Public Law 110-314, section 3, 122 Stat. 3016, 3017 (2008); 15 U.S.C. 2063.

    2. Amend § 1112.15 by adding paragraph (b)(45) to read as follows:
    § 1112.15 When can a third party conformity assessment body apply for CPSC acceptance for a particular CPSC rule or test method?

    (b) * * *

    (45) 16 CFR part 1235, Safety Standard for Baby Changing Products.

    3. Add part 1235 to read as follows: PART 1235—SAFETY STANDARD FOR BABY CHANGING PRODUCTS Sec. 1235.1 Incorporation by reference. 1235.2 Scope. 1235.3 Requirements for baby changing products. Authority:

    Sec. 104, Pub. L. 110-314, 122 Stat. 3016.

    § 1235.1 Incorporation by reference.

    Certain material is incorporated by reference into this part with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. All approved material is available for inspection at the U.S. Consumer Product Safety Commission, Office of the Secretary, 4330 East West Highway, Room 820, Bethesda, MD 20814, telephone 301-504-7923, and is available from the sources listed below. It is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030 or go to http://www.archives.gov/federal_register/code_of_federalregulations/ibr_locations.html.

    (a) American National Standards Institute, Inc., 1899 L Street, NW., 11th Floor, Washington, DC 20036; telephone 202-293-8020; https://www.ansi.org.

    (1) ANSI Z535.4-2011, Product Safety Signs and Labels, 2011 (ANSI Z535.4-2011), IBR approved for § 1235.3.

    (2) [Reserved]

    (b) ASTM International, 100 Bar Harbor Drive, P.O. Box 0700, West Conshohocken, PA 19428; telephone 877-909-2786; http://www.astm.org/cpsc.htm.

    (1) ASTM F2388-16, Standard Consumer Safety Specification for Baby Changing Tables for Domestic Use, 2016 (ASTM F2388-16), IBR approved for § 1235.3.

    (2) [Reserved]

    § 1235.2 Scope.

    This part establishes a consumer product safety standard for baby changing products, including changing tables and other changing products, such as contoured changing pads and add-on changing units sold separately for use on furniture products other than changing tables.

    § 1235.3 Requirements for baby changing products.

    (a) Except as provided in paragraphs (b) through (m) of this section, each baby changing product must comply with all applicable provisions of ASTM F2388-16 (incorporated by reference, see § 1235.1)

    (b) Comply with ASTM F2388-16 with the additions or exclusions listed in paragraphs (c) through (m) of this section:

    (c) In addition to the definitions in section 3.1 of ASTM F2388-16, the following definitions apply to this section:

    (1) 3.1.14 key structural elements, n—side assemblies, end assemblies, base assemblies, leg assemblies, primary changing surface supports, or other components designed to support the weight of the occupant, or a combination thereof.

    (2) 3.1.15 non-rigid add-on changing unit accessory, n—a supported changing unit that attaches to a crib or play yard designed to convert the product into a changing table typically having a rigid frame with soft fabric or mesh sides and/or bottom surface.

    (d) In addition to complying with sections 5.1 through 5.7 of ASTM F2388-16, comply with the following:

    (1) 5.8 Threaded Fasteners (Wood Screws and Sheet Metal Screws)

    (i) 5.8.1 No changing table shall require consumer assembly of key structural elements using wood screws or sheet metal fasteners directly into wood components. This shall not apply to non-key structural elements such as drawers, secondary support straps, other storage components, or accessory items.

    (ii) 5.8.2 Metal inserts, with external wood screw threads for screwing into a wood component and providing internal machine threads to accommodate a machine screw, that are used to secure key structural elements shall be glued or include other means to impede loosening or detaching.

    (iii) 5.8.3 Metal threaded fasteners, such as sheet metal screws and machine screws, secured into metal components and used to attach key structural elements shall have lock washers, self-locking nuts, or other means to impede loosening or detachment during the testing required by this specification, as described in section 6.2 of ASTM F2388-16.

    (2) [Reserved]

    (e) Instead of complying with section 6.2 of ASTM F2388-16, comply with the following:

    (1) 6.2 Structural Integrity—When tested in accordance with 7.2, there shall be no breakage of the unit, nor shall it fail to conform to any other requirements in this specification before and after all testing. Components attached by screws shall not have separated by more than 0.04 in. (1 mm) upon completion of testing.

    Note 1:

    Contoured changing pads and add-on changing units that are sold separately are exempt from this requirement.

    (2) [Reserved]

    (f) In addition to complying with section 6.8 of ASTM F2388-16, comply with the following:

    (1) 6.9 Restraint System

    Note 2:

    A restraint system may be provided to restrict upward or lateral movement of the occupant's torso. Inclusion of a restraint system is not mandatory.

    (i) 6.9.1 If a restraint system is installed on the product or available as an option, it shall meet the following:

    (A) 6.9.1.1 A restraint system and its closing means (for example, buckle) shall not break or separate when tested in accordance with 7.8.

    (B) 6.9.1.2 The anchorages shall not separate from the unit when tested in accordance with 7.8.

    (C) 6.9.1.3 Restraints shall be capable of adjustment with a positive, self-locking mechanism that is capable, when locked, of withstanding the forces of tests in 7.8 without allowing restraint movement or slippage of more than 1 in. (25.4 mm).

    (ii) [Reserved]

    (2) [Reserved]

    (g) Instead of complying with section 7.2 of ASTM F2388-16, comply with the following:

    (1) 7.2 Structural Integrity—Assemble the unit in accordance with the manufacturer's assembly instructions. If the product design employs secondary support bars or straps beneath the changing surface that are not factory preassembled in their intended use position, this test is to be conducted without the support bars/straps installed. Place the unit on the test floor, center a 6 by 6 in. (150 by 150 mm) wood block on the changing surface and gradually apply a 100 lb (45.4 kg) weight onto the wood block within a period of 5 s. Maintain the weight for an additional period of 60 s.

    (2) [Reserved]

    (h) Instead of complying with section 7.4 of ASTM F2388-16, comply with the following:

    (1) 7.4 Barrier Structural Integrity and Retention Tests:

    (i) 7.4.1 Test Equipment and Test Set Up

    (A) 7.4.1.3 Test Set Up—Assemble the unit in accordance with the manufacturer's assembly instructions. If the product design employs secondary support bars or straps beneath the changing surface that are not factory preassembled in their intended use position, this test is to be conducted without the support bars/straps installed.

    (B) [Reserved]

    (ii) [Reserved]

    (2) [Reserved]

    (i) In addition to complying with section 7.7 of ASTM F2388-16, comply with the following:

    (1) 7.8 Restraint System—

    (i) 7.8.1 Secure the unit in its recommended use position so that it cannot move in the direction of the force being applied.

    (ii) 7.8.2 Secure a CAMI Infant Dummy, Mark II on the changing surface in accordance with the manufacturer's instructions.

    (iii) 7.8.3 Adjust the restraint, using the webbing tension pull device shown in Figure 1, below, so that a force of 2 lbf (9 N) applied to the restraint will provide a 1/4 in. (6 mm) space between the restraint and the CAMI Dummy.

    (iv) 7.8.4 Using the webbing tension pull device shown in Figure 1, below, perform the following tests without readjusting the restraint system.

    (A) 7.8.4.1 Within 5 s, gradually apply a pull force of 30 lbf (200 N) on the restraint strap and maintain for an additional 10 s. Release the restraint strap. Repeat this test for a total of four pulls in the following directions: Horizontally away from the table in the direction an occupant could roll, in a direction that is 45 degrees from the horizontal changing surface towards the head of the changing pad, in a direction that is 45 degrees from the horizontal changing surface towards the foot of the changing pad, and vertically straight up away from the changing pad.

    EP29SE16.000

    (B) [Reserved]

    (2) [Reserved]

    (j) Instead of complying with sections 9.1.1 and 9.1.2 of ASTM F2388-16, comply with the following:

    (1) 9.1.1 The name, place of business (mailing address, including city, state, and zip code), and telephone number of the manufacturer, distributor, or seller.

    (2) 9.1.2 A code mark or other means that identifies the date (month and year as a minimum) of manufacture.

    Note 3:

    Add-on changing units, non-rigid add-on changing unit accessories, or contoured changing pads sold with non-full size cribs and play yards are exempt from the labeling requirements of 9.1.1 and 9.1.2, as labeling requirements for these accessories are included in Consumer Safety Specification F406.

    (k) Instead of complying with section 9.3 of ASTM F2388-16, comply with the following:

    (1) 9.3 The marking and labeling on the product shall be permanent.

    (2) [Reserved]

    (l) In addition to complying with section 9.3, as revised in paragraph (k) of this section, comply with the following:

    (1) 9.4 Warning Design for Product

    (i) 9.4.1 The warning shall be easy to read and understand and be in the English language at a minimum.

    (ii) 9.4.2 Any marking or labeling provided in addition to those required by this section shall not contradict or confuse the meaning of the required information, or be otherwise misleading to the consumer.

    (iii) 9.4.3 The warnings shall be conspicuous and permanent.

    (iv) 9.4.4 The warnings shall conform to sections 6.1-6.4, 7.2-7.6.3, and 8.1 of ANSI Z535.4-2011 (incorporated by reference, see § 1235.1), with the changes indicated in paragraph (l)(1)(iv)(A), (B), and (C) of this section

    (A) 9.4.4.1 In sections 6.2.2, 7.3, 7.5, and 8.1.2, replace “should” with “shall.”

    (B) 9.4.4.2 In section 7.6.3, replace “should (when feasible)” with “shall.”

    (C) 9.4.4.3 Strike the word “safety” when used immediately before a color (e.g., replace “safety white” with “white”).

    (v) 9.4.5 The safety alert symbol and the signal word “WARNING” shall not be less than 0.2 in. (5 mm) high. The remainder of the text shall be in characters whose upper case shall be at least 0.1 in. (2.5 mm), except where otherwise specified.

    Note 4:

    For improved warning readability, the warning designer should avoid the use of typefaces with large height-to-width ratios, which are commonly identified as “condensed,” “compressed,” “narrow,” or similar.

    (vi) 9.4.6 Message Panel Text Layout

    (A) 9.4.6.1 The text shall be left aligned, ragged right for all but one-line text messages, which can be left aligned or centered.

    Note 5:

    Left aligned means that the text is aligned along the left margin, and, in the case of multiple columns of text, along the left side of each individual column.

    (B) 9.4.6.2 The text in each column should be arranged in list or outline format, with precautionary (hazard avoidance) statements preceded by bullet points. Multiple precautionary statements shall be separated by bullet points if paragraph formatting is used.

    (vii) 9.4.7 An example warning in the format described in this section is shown in Figure 2, below.

    EP29SE16.001

    (2) 9.5 Warning Statements—Each product shall have warnings statements to address the following, at a minimum:

    (i) 9.5.1 The following warning statements shall be placed on all changing tables, including add-on changing units and contoured changing pads that are sold separately:

    Fall Hazard. Children have suffered serious injuries after falling from changing [tables/pads/areas]. Falls can happen quickly.

    • STAY in arm's reach.

    Note 6:

    The words in brackets provide wording options. The manufacturer should select the most appropriate term for the product and may substitute another term that is consistent with the product's marketing and instructions.

    (ii) 9.5.2 Removable pads that are included with changing tables, contoured pads, non-rigid add-on changing unit accessories, and add-on changing units sold separately that are intended to be physically attached to the support surface shall have a warning on the pad or changing unit, and its retail packaging, to address the following:

    • ALWAYS secure this [unit/pad] to the support [surface/frame] by (manufacturer's instructions for securing the changing unit). See instructions.

    Note 7:

    The words in the brackets provide wording options. The manufacturer should select the most appropriate term for the product and may substitute another term that is consistent with the product's marketing and instructions.

    (iii) 9.5.3 Non-rigid add-on changing unit accessories, changing pads, and contoured changing pads, whether sold with the changing table or sold separately, shall include the following additional warning statements:

    Suffocation Hazard. Babies have suffocated while sleeping [in/on] changing [tables/pads/areas]. Changing [table/pad/area] is not designed for safe sleeping.

    • NEVER allow baby to sleep [in/on] changing [table/pad/area].

    Note 8:

    The words in brackets provide wording options. The manufacturer should select the most appropriate term for the product and may substitute another term that is consistent with the product's marketing and instructions.

    (iv) 9.5.4 Contoured changing pads, non-rigid add-on changing unit accessories, and add-on changing units sold separately shall include additional warnings addressing either: (a) The specific products to attach the contoured changing pad or add-on unit to; or (b) That the surface used should be level, stable, and structurally sound with minimum surface dimensions of “X” by “Y.”

    (m) Instead of complying with section 10.1.1 of ASTM F2388-16, comply with the following:

    (1) 10.1.1 The instructions shall contain the warnings as specified in 9.5 and address the statements in 10.1.1.1 through 10.1.1.8. These required warning statements shall meet the requirements described in 9.4, except for the color requirements provided in ANSI Z535.4-2011, (e.g., the background of the signal word panel need not be a specific color).

    Note 9:

    For additional guidance on the design of warnings for instructional literature, please refer to the most-recent edition of ANSI Z535.6, Product Safety Information in Product Manuals, Instructions, and Other Collateral Materials, American National Standards Institute, Inc., available at http://www.ansi.org/.

    (2) [Reserved]

    Dated: September 14, 2016 Todd A. Stevenson, Secretary, Consumer Product Safety Commission.
    [FR Doc. 2016-22557 Filed 9-28-16; 8:45 am] BILLING CODE 6355-01-P
    SECURITIES AND EXCHANGE COMMISSION 17 CFR Parts 210, 229, 230, 239, 240, 249, and 274 [Release No. 33-10220; 34-78926; IC-32281; File No. S7-15-16] RIN 3235-AL82 Extension of Comment Period for Disclosure Update and Simplification AGENCY:

    Securities and Exchange Commission.

    ACTION:

    Extension of comment period.

    SUMMARY:

    The Securities and Exchange Commission is extending the comment period for a proposal to amend certain of its disclosure requirements that may have become redundant, duplicative, overlapping, outdated, or superseded, in light of other Commission disclosure requirements, U.S. Generally Accepted Accounting Principles (“U.S. GAAP”), International Financial Reporting Standards (“IFRS”), or changes in the information environment [Release No. 33-10110; 34-78310; IC-32175; 81 FR 51607 (July 13, 2016)]. The release also solicits comment on certain Commission disclosure requirements that overlap with, but require information incremental to, U.S. GAAP to determine whether to retain, modify, eliminate, or refer them to the Financial Accounting Standards Board for potential incorporation into U.S. GAAP. The original comment period is scheduled to end on October 3, 2016. The Commission is extending the time period in which to provide the Commission with comments until November 2, 2016. This action will allow interested persons additional time to analyze the issues and prepare their comments.

    DATES:

    Comments should be received on or before November 2, 2016.

    ADDRESSES:

    Comments may be submitted by any of the following methods:

    Electronic Comments

    • Use the Commission's Internet comment forms (http://www.sec.gov/rules/proposed.shtml);

    • Send an email to [email protected] Please include File Number S7-15-16 on the subject line; or

    • Use the Federal Rulemaking Portal (http://www.regulations.gov). Follow the instructions for submitting comments.

    Paper Comments

    • Send paper comments to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.

    All submissions should refer to File Number S7-15-16. This file number should be included on the subject line if email is used. To help us process and review your comments more efficiently, please use only one method. The Commission will post all comments on the Commission's Internet Web site (http://www.sec.gov/rules/proposed.shtml). Comments also are available for Web site viewing and printing in the Commission's Public Reference Room, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. All comments received will be posted without change; we do not edit personal identifying information from submissions. You should submit only information that you wish to make available publicly.

    Studies, memoranda or other substantive items may be added by the Commission or staff to the comment file during this rulemaking. A notification of the inclusion in the comment file of any such materials will be made available on the SEC's Web site. To ensure direct electronic receipt of such notifications, sign up through the “Stay Connected” option at www.sec.gov to receive notifications by email.

    FOR FURTHER INFORMATION CONTACT:

    Nili Shah, Deputy Chief Accountant, at (202) 551-3255, Division of Corporation Finance; Duc Dang, Senior Special Counsel, at (202) 551-3386, Office of the Chief Accountant; Matt Giordano, Chief Accountant, at (202) 551-6918, Division of Investment Management; Valentina Minak Deng, Special Counsel, at (202) 551-5778 and Tim White, Special Counsel, at (202) 551-5777, Division of Trading and Markets; Harriet Orol, Branch Chief, at (212) 336-0554, Office of Credit Ratings; Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549.

    SUPPLEMENTARY INFORMATION:

    The Commission has requested comment on a release proposing amendments to certain of its disclosure requirements that may have become redundant, duplicative, overlapping, outdated, or superseded, in light of other Commission disclosure requirements, U.S. GAAP, IFRS, or changes in the information environment. The release also solicited comment on certain disclosure requirements that overlap with, but require information incremental to, U.S. GAAP to determine whether to retain, modify, eliminate, or refer them to the Financial Accounting Standards Board (“FASB”) for potential incorporation into U.S. GAAP.1 The proposed amendments are intended to facilitate the disclosure of information to investors, while simplifying compliance efforts, without significantly altering the total mix of information provided to investors.

    1 Specifically, the Commission proposed amendments to, or solicited comment on potential FASB referrals of, Rules 1-02, 2-01, 2-02, 3-01, 3-02, 3-03, 3-04, 3-05, 3-12, 3-14, 3-15, 3-17, 3-20, 3A-01, 3A-02, 3A-03, 3A-04, 4-01, 4-07, 4-08, 4-10, 5-02, 5-03, 5-04, 6-03, 6-04, 6-07, 6-09, 6A-04, 6A-05, 7-02, 7-03, 7-04, 7-05, 8-01, 8-02, 8-03, 8-04, 8-05, 8-06, 9-03, 9-04, 9-05, 9-06, 10-01, 11-02, 11-03, 12-16, 12-17, 12-18, 12-28, and 12-29 of Regulation S-X under the Securities Act of 1933 (the “Securities Act”) and the Securities Exchange Act of 1934 (the “Exchange Act”), Items 10, 101, 103, 201, 302, 303, 503, 512, and 601 of Regulation S-K under the Securities Act and the Exchange Act, Item 1010 of Regulation M-A under the Securities Act and the Exchange Act, and Item 1118 of Regulation AB under the Securities Act and the Exchange Act, Rule 158 of the Securities Act, Rules 405 and 436 of Regulation C under the Securities Act, Forms S-1, S-3, S-11, S-4, F-1, F-3, F-4, F-6, F-7, F-8, F-10, F-80, SF-1, SF-3, 1-A, 1-K, and 1-SA under the Securities Act, Rules 3a51-1, 10A-1, 12b-2, 13a-10, 13b2-2, 14a-101, 15c3-1g, 15d-2, 15d-10, 17a-5, 17a-12, 17g-3, and 17h-1T of the Exchange Act, Forms 20-F, 40-F, 10-K, 11-K, 10-D, and X-17A-5 under the Exchange Act, Forms N-5, N-1A, N-2, N-3, N-4, and N-6 under the Securities Act and the Investment Company Act of 1940 (the “Investment Company Act”), and Form N-8B-2 under the Investment Company Act.

    The Commission originally requested that comments on the release be received by October 3, 2016. The Commission has received several requests for an extension of time for public comment on the proposal to, among other things, allow for adequate time to fully consider the proposals and to improve the quality of responses.2 The Commission believes that providing the public additional time to consider thoroughly the matters addressed by the release and to submit comprehensive responses to the release would benefit the Commission in its consideration of final rules. Therefore, the Commission is extending the comment period for Release No. 33-10110; 34-78310; IC-32175 “Disclosure Update and Simplification” until November 2, 2016.

    2See Letters from Center for Audit Quality (Aug. 4, 2016), American Gas Association Accounting Advisory Council (Aug. 24, 2016), Edison Electric Institute (Aug. 24, 2016) and the National Association of Real Estate Investment Trusts (Sept. 9, 2016). Comments are available on the Commission's Web site at https://www.sec.gov/comments/s7-15-16/s71516.htm.

    By the Commission.

    Dated: September 23, 2016. Brent J. Fields, Secretary.
    [FR Doc. 2016-23489 Filed 9-28-16; 8:45 am] BILLING CODE 8011-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R10-OAR-2016-0493: FRL-9953-03-Region 10] Approval and Promulgation of Implementation Plans; Washington: General Regulations for Air Pollution Sources AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    In reviewing past State Implementation Plan (SIP) actions, the Washington Department of Ecology (Ecology) and the Environmental Protection Agency (EPA) discovered minor typographical errors related to the EPA's previous approvals of Chapter 173-400 Washington Administrative Code, General Regulations for Air Pollution Sources. The EPA is proposing to correct these errors. The proposed corrections make no substantive changes to the SIP and impose no new requirements. In the Final Rules section of this Federal Register, the EPA is approving these corrections as a direct final rule without prior proposal because the Agency views this as a noncontroversial action and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to this action, no further activity is contemplated. If the EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. The EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time.

    DATES:

    Comments must be received on or before October 31, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R10-OAR-2016-0493 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the Web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Jeff Hunt, Air Planning Unit, Office of Air and Waste (OAW-150), Environmental Protection Agency, Region 10, 1200 Sixth Ave, Suite 900, Seattle, WA 98101; telephone number: (206) 553-0256; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this Federal Register. Please note that if the EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, the EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

    Dated: September 14, 2016. Dennis J. McLerran, Regional Administrator, Region 10.
    [FR Doc. 2016-23297 Filed 9-28-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 131 [EPA-HQ-OW-2016-0405; FRL-9953-19-OW] RIN 2040-AF62 Federal Baseline Water Quality Standards for Indian Reservations AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Advance notice of proposed rulemaking (ANPRM).

    SUMMARY:

    The Environmental Protection Agency (EPA) is considering establishing federal baseline water quality standards (WQS) for certain Indian reservation waters to narrow a long-standing gap in coverage of Clean Water Act (CWA) protections. Currently, fewer than 50 of over 300 tribes with reservations have WQS effective under the CWA; most of the reservations with existing CWA-effective WQS have obtained the coverage through treatment in a manner similar to a state (TAS) under CWA section 518. In advance of any potential rulemaking to address this gap of CWA coverage, EPA specifically invites comments on whether to establish such federal baseline WQS for Indian reservation waters that do not yet have WQS under the CWA and, if so, what those WQS should be and how they should be implemented. Federal baseline WQS would define water quality goals for unprotected reservation waters and serve as the foundation for CWA actions to protect human health and the environment. Such WQS, if established, would apply only to those waters not already covered by existing CWA-effective WQS and would be superseded by any WQS subsequently adopted by an authorized tribe and approved by EPA under CWA section 303(c).

    DATES:

    Comments must be received on or before December 28, 2016. EPA intends to hold two public webinars to discuss the ANPRM during the public comment period. If you are interested, see EPA's Web site at https://www.epa.gov/wqs-tech/advance-notice-proposed-rulemaking-federal-baseline-water-quality-standards-indian for the dates and times of the webinars and instructions on how to register and participate.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OW-2016-0405, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Mary Lou Soscia, Region 10, Environmental Protection Agency, 805 SW. Broadway, Suite 500, Portland, OR 97205; telephone number: (503) 326-5873; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    This supplementary information section is organized as follows:

    I. Who may be interested in this ANPRM? II. Background A. What is the role of WQS under the CWA? B. What is the “gap” in WQS protection for waters on Indian reservations? C. How has EPA tried to address the gap of CWA coverage previously? D. Why is EPA publishing this ANPRM? III. What would be included in the federal baseline WQS effort? A. To what waters would the potential federal baseline WQS apply? B. Which waters should be excluded from the potential federal baseline WQS? C. What designated uses should be considered in proposing potential federal baseline WQS? D. What water quality criteria should be considered in proposing potential federal baseline WQS? 1. Narrative Water Quality Criteria 2. Numeric Water Quality Criteria a. Aquatic Life Protection b. Human Health Protection E. What approaches should the potential federal baseline WQS take with regard to antidegradation requirements? 1. Antidegradation Policy 2. Antidegradation Implementation Methods F. How could wetlands be addressed in the potential federal baseline WQS? G. Which general provisions should be included in the potential federal baseline WQS? 1. Mixing Zone Authorizing Provision 2. Compliance Schedule Authorizing Provision 3. WQS variance authorizing provision H. Can tribes adopt WQS of their own? IV. Statutory and Executive Order Review I. Who may be interested in this ANPRM?

    Tribes, states, local governments, and citizens concerned with water quality, and how water quality may be defined and protected on Indian reservations, may be interested in this ANPRM. Entities discharging pollutants to waters of the United States may be indirectly affected by a rulemaking resulting from this ANPRM since WQS are used to develop National Pollutant Discharge Elimination System (NPDES) permit limits and serve as a basis for Clean Water Act (CWA) section 404 permit decisions. WQS are also the basis for assessing water quality, identifying impaired waters and developing total maximum daily loads (TMDLs) under CWA sections 305(b) and 303(d). Potentially affected entities include:

    Category Examples of potentially affected entities States, Tribes, and Territories Tribes currently without CWA-effective WQS and tribes and states near or bordering Indian reservations that do not have WQS effective under the CWA. Federal Agencies Federal agencies with projects or other activities near surface waters on Indian reservations. Industry Industries discharging pollutants to surface waters on Indian reservations, or that may affect surface waters on Indian reservations. Municipalities Publicly-owned treatment works and stormwater outfalls discharging pollutants to surface waters on Indian reservations, or that may affect surface waters on Indian reservations.

    This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by a potential federal baseline WQS rule resulting from this ANPRM. This table lists the types of entities that EPA is now aware could potentially be affected by such action. Other types of entities not listed in the table could also be affected. If you have questions regarding the effect of this action on a particular entity, please consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

    II. Background A. What is the role of WQS under the CWA?

    The CWA—initially enacted as the Federal Water Pollution Control Act Amendments of 1972 (Pub. L. 92-500) and subsequent amendments—establishes the basic structure in place today for regulating pollutant discharges into the waters of the United States. In the CWA, Congress established the national objective to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters,” and to achieve “wherever attainable, an interim goal of water quality that provides for the protection and propagation of fish, shellfish, and wildlife and for recreation in and on the water” (sections 101(a) and 101(a)(2)).

    The CWA establishes the basis for the current WQS regulation and program. Section 301 of the CWA provides that: “the discharge of any pollutant by any person shall be unlawful” except in compliance with specific requirements of Title III and IV of the CWA, including industrial and municipal effluent limitations specified under CWA section 304 and “any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedules of compliance established pursuant to any [s]tate law or regulation.” Section 303(c) of the CWA addresses the development of state 1 and authorized tribal WQS and provides for the following:

    1 “State” in the CWA and this document refers to the 50 states, the District of Columbia, and the five United States territories: The Commonwealth of Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands. “Authorized tribe” refers to those federally recognized Indian tribes with authority to administer CWA WQS program in a manner similar to a state under CWA Section 518.

    (1) WQS shall consist of designated uses and water quality criteria based upon such uses;

    (2) States and authorized tribes shall establish WQS considering the following possible uses for their waters—protection and propagation of fish, shellfish and wildlife, recreational purposes, public water supply, agricultural and industrial water supplies, navigation, and other uses;

    (3) State and authorized tribal WQS must protect public health or welfare, enhance the quality of water, and serve the purposes of the CWA;

    (4) States and authorized tribes must review their WQS at least once every three years; and

    (5) EPA must review any new or revised state and authorized tribal WQS, and is also required to promulgate federal WQS where EPA finds that new or revised state or authorized tribal WQS are not consistent with applicable requirements of the CWA or in situations where the Administrator determines that federal WQS are necessary to meet the requirements of the CWA.

    EPA established regulatory requirements in 1975,2 1983,3 1991,4 2000,5 and 2015 6 to implement CWA section 303(c), now found in the WQS regulation at 40 CFR part 131. The WQS regulation includes general provisions, requirements for establishing WQS, procedures for review and revision of WQS, and the text of federal WQS that EPA has promulgated for specific waters of the United States.

    2 In 1975, EPA established the initial WQS regulation at 40 CFR 130.17. See 40 FR 55334, Nov. 20, 1975.

    3 In 1983, EPA established the core of the current WQS regulation by strengthening the previous provisions and moving them to a new 40 CFR part 131. See 54 FR 51400, November 8, 1983.

    4 In 1991, EPA added 40 CFR 131.7 and 131.8 to extend the ability to participate in the WQS program to eligible Indian tribes, pursuant to CWA section 518 which was enacted in 1987. See 56 FR 64893, December 12, 1991. See also EPA's revised interpretation of CWA section 518 (81 FR 30183, May 16, 2016).

    5 In 2000, EPA promulgated 40 CFR 131.21(c), commonly known as the “Alaska Rule,” to clarify that new and revised WQS adopted by states and authorized tribes and submitted to EPA after May 30, 2000, become applicable WQS for CWA purposes only when approved by EPA. See 65 FR 24641, April 27, 2000.

    6 In 2015, EPA updated six key areas of the WQS regulation to provide a better-defined pathway for states and authorized tribes to improve water quality, protect high quality waters, increase transparency and enhance opportunities for meaningful public engagement at the state, tribal and local levels. See 80 FR 51019, August 21. 2015.

    CWA-effective WQS are the foundation of the water quality-based pollution control program mandated by the CWA and serve a dual purpose. First, WQS define the goals for a water body by designating its uses, setting criteria to protect those uses, and establishing antidegradation requirements. Second, WQS are a basis for water quality-based limits in NPDES permits (CWA sections 301(b)(1)(C) and 402), as the measure to assess whether waters are impaired (CWA section 303(d)(1)(A)), for assessing and reporting on water quality biannually under CWA section 305(b), and as the target for a TMDL or “pollution budget” to aid in the restoration of impaired waters (CWA section 303(d)(1)(C)). Under CWA section 401, WQS serve as a basis for granting, granting with conditions, or denying state, authorized tribal, or federal certifications for federal licenses or permits for activities that may result in a discharge to waters covered by such WQS.

    B. What is the “gap” in WQS protection for waters on Indian reservations?

    The federal government has recognized 567 tribes. Over 300 of these tribes have reservation lands such as formal reservations, Pueblos, and informal reservations (i.e., lands held in trust by the United States for tribal governments that are not designated as formal reservations). Under principles of federal law, states generally lack authority to regulate on Indian reservations. See, e.g., Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520, 527 n.1 (1998). EPA has generally excluded such lands from state programs it has approved under the CWA (and other environmental laws administered by EPA).7 Thus, state WQS under EPA-authorized state CWA programs generally do not apply on Indian reservations.

    7 As noted in this section, there are a few instances where EPA has approved state WQS for particular reservations based on regulatory authority granted to the state in a separate federal law.

    In the absence of applicable state or federal WQS, the principal mechanism for establishing WQS for Indian reservation waters has been through the authority provided by CWA section 518. That section provides that, where a tribe is interested in administering the CWA WQS program, the tribe must (a) become authorized and (b) adopt and submit WQS to EPA for approval. To become authorized, the tribe must seek eligibility for TAS—consistent with the requirements of CWA section 518(e) and 40 CFR 131.8. Section 518(e) of the CWA establishes eligibility criteria for TAS, including requirements that the tribe have a governing body carrying out substantial governmental duties and powers; that the functions to be exercised by the tribe pertain to the management and protection of water resources within the borders of an Indian reservation; and that the tribe be reasonably expected to be capable of carrying out the functions to be exercised in a manner consistent with the terms and purposes of the CWA and applicable regulations. In 1991, EPA issued a final rule to implement CWA section 518(e) for the WQS program. EPA's regulation at 40 CFR 131.8 uses the eligibility criteria contained in CWA section 518 and establishes procedures for EPA Regional Administrators to receive and take action on tribal applications, so they are treated in a similar manner as a state for CWA purposes. To adopt WQS and have them approved by EPA, an authorized tribe must meet the same requirements applicable to states in 40 CFR 131 subparts B and C.

    Most of the Indian reservations that are currently covered by CWA-effective WQS involve authorized tribes that have developed and adopted WQS that were approved by EPA (and made effective for CWA purposes). Currently, 53 of the over 300 federally recognized tribes with reservation lands have been authorized to administer a WQS program. Of these authorized tribes, 42 have had their WQS approved by EPA.8

    8 EPA maintains a current list of authorized tribes and tribal WQS approvals at: https://www.epa.gov/wqs-tech/epa-approvals-tribal-water-quality-standards.

    Another way to establish CWA-effective WQS for Indian reservation waters is for EPA to promulgate federal WQS on a tribe-by-tribe, reservation-by-reservation basis. EPA has promulgated such federal WQS for one tribe, the Confederated Tribes of the Colville Reservation in Washington. See 40 CFR 131.35 (54 FR 28622, July 6, 1989).9 There are also uncommon circumstances where a separate federal law grants a particular state the authority to regulate the environment on an Indian reservation. Where EPA expressly approves such a state's authority and the state's WQS for waters of an Indian reservation, such WQS will apply under the CWA for those waters. To date, EPA has approved three states (Washington, South Carolina, and Maine) to administer WQS on reservations or parts of reservations of six Indian tribes.

    9 When establishing federal WQS for waters of the United States, EPA uses authority provided by the CWA to promulgate federal WQS where the EPA Administrator determines that new or revised WQS are necessary to meet the requirements of the CWA (see CWA section 303(c)(4)(B) and 40 CFR 131.22(b)).

    For various reasons, many tribes with reservation lands have been unable to apply, or have chosen not to apply, for TAS to administer a WQS program under the CWA. Some tribes have lacked resources to develop WQS to implement a WQS program while other tribes are focusing on addressing other environmental priorities first. Some tribes may be concerned that they cannot meet eligibility requirements, or that applying for program authorization could raise jurisdictional or other legal issues. Some tribes may have adopted water quality standards under tribal law and believe that such water quality standards are adequate to protect their water resources without being approved under the CWA. However, a tribe must obtain TAS and EPA must approve their water quality standards for those standards to be effective for CWA purposes.

    Thus, except for the 42 authorized tribes with EPA-approved WQS in effect, the one instance where EPA has promulgated federal WQS (for the Colville Reservation), and six tribes for which EPA has approved states (Washington, South Carolina, and Maine) to adopt WQS on reservations or parts of reservations, there is a gap in water quality protection under the CWA for waters on Indian reservations.

    C. How has EPA tried to address the gap of CWA coverage previously?

    Between 1998 and 2003, EPA consulted widely with tribes, states, and others on the possibility of EPA promulgating certain federal WQS referred to as “core WQS” for Indian country waters without CWA-effective WQS. On January 18, 2001, EPA Administrator Carol Browner signed a proposed rule to promulgate the core WQS under CWA section 303(c). On January 22, 2001, EPA withdrew that proposal to allow additional review. Eventually, EPA Administrator Christine Whitman requested that EPA staff conduct additional outreach and consultation with tribes and states and issue an ANPRM before proposing a core WQS rule. Between 2001 and 2003, EPA began working on the ANPRM to invite comments and views on a variety of broad, possible approaches for establishing federal core WQS for waters in Indian country. Ultimately, EPA did not issue the core WQS ANPRM, nor did it reissue the proposed rule.

    D. Why is EPA publishing this ANPRM?

    EPA is publishing this ANPRM to initiate an informed dialogue with tribes, states, the public, and other stakeholders regarding whether EPA should initiate a rulemaking to establish federal baseline WQS for Indian reservations currently lacking such WQS and, if so, what approach EPA should take regarding key policy issues raised by such a rulemaking.

    Federal baseline WQS—which could include designated uses, narrative and numeric criteria, antidegradation requirements, and other WQS policies such as a mixing zone policy, a compliance schedule authorizing provision, and a WQS variance procedure—can provide an important tool for tribes and EPA to use in making defensible, site-specific decisions that protect reservation waters. The WQS being considered would provide adequate coverage in each category, as a starting point. To be most effective, CWA-effective WQS should be tailored to the individual circumstances of the authorized tribe and its waters, likely through the development of additional or refined criteria and uses. EPA's preference is for tribes to utilize the TAS and WQS submittal process to develop such tailored WQS. EPA remains committed to assisting tribes in reaching this goal.

    The primary benefit of federal baseline WQS would be to ensure that Indian reservation waters that are without CWA-effective WQS have direct water quality-based protection under the CWA. Many of the CWA's mechanisms for protecting water quality, such as water quality-based effluent limits in NPDES discharge permits, rely on WQS as the foundation for water quality-based decisions. Without applicable WQS, these mechanisms may be limited.

    This ANPRM seeks input on key issues related to whether and how to fill the gap of WQS coverage in Indian reservation waters. In preparation for this ANPRM effort and consistent with EPA's Policy on Consultation and Coordination with Indian tribes, from August through November 2015 and from June through August 2016, EPA consulted and coordinated with officials from more than 130 tribes from around the United States. During that time, EPA received considerable input from tribal officials, most of it positive and supportive of this effort. EPA plans to continue consultation and coordination with tribal officials to address some of the tribes' questions and concerns, most of which center on implementation of any federal baseline WQS.

    As mentioned previously, WQS would inform permit decisions and other implementation actions. Recognizing tribes potentially affected by this effort may have limited resources and experience with WQS development, administration, and implementation, EPA would work with the affected tribal government(s) through opportunities for coordination and consultation, as appropriate, in interpreting and applying any final federal baseline WQS rule.

    EPA invites comment from all Indian tribes, especially tribes with reservation land that do not have CWA-effective WQS and members of those tribes, on whether establishing federal baseline WQS is an appropriate step in advancing the federal trust responsibility to federally recognized tribes, and enhancing tribal government sovereignty through protection of reservation water quality. EPA is interested also in any input regarding whether there are any concerns that would warrant not including a particular tribe in any final federal baseline WQS rule. While EPA is considering proposing to apply these WQS to all Indian reservations without CWA-effective WQS, in order to meet the goals of the CWA and better protect Indian reservation waters, EPA invites comment on other options.

    This ANPRM is part of a broader effort to narrow gaps in CWA-effective WQS coverage in Indian country. On May 16, 2016, EPA revised the interpretation of CWA section 518 to streamline the process for tribes to apply for TAS for CWA regulatory programs, including the WQS program.10 At the same time as EPA considers—through this ANPRM—whether and how to establish federal WQS for waters on Indian reservations, EPA continues to encourage, work closely with, and provide support to eligible tribes that wish to seek TAS and develop their own WQS for approval under the CWA. EPA continues to recognize that the appropriate place for a tribe to fully realize its unique objectives for WQS continues to be through seeking TAS for the purpose of administering WQS under the CWA.11 EPA remains committed to helping tribes navigate the TAS and WQS adoption processes. In practice, implementation of any final federal baseline WQS could also provide individual tribes valuable understanding and experience in how WQS function under the CWA to protect Indian reservation waters.

    10 See 81 FR 30183 (May 16, 2016).

    11 Recognizing the importance of protecting waters on which tribes rely, EPA is also preparing a final rule to establish procedures for tribes to obtain TAS to administer the water quality restoration provisions of CWA section 303(d) to identify impaired waters on their reservations and to establish total maximum daily loads, which serve as plans for attaining and maintaining applicable WQS.

    EPA expects that this reinterpretation of CWA section 518 will better position tribes to seek TAS, establish their own WQS, and facilitate tribal involvement in the protection of reservation water quality as intended by Congress. To help facilitate the TAS application and WQS adoption processes, EPA is developing new guidance, including creating draft TAS applications and WQS language for use by eligible tribes.12

    12 “Eligible tribes” are those tribes that EPA has approved for TAS under the requirements of CWA section 518(e) and 40 CFR 131.8.

    EPA expects to continue to provide such support even if EPA were to promulgate any final federal baseline WQS rule. In addition, as described in sections III.A and III.B of this document, EPA would expect that any final federal baseline WQS that may be put in place would no longer apply to the waters on Indian reservations of a tribe once the tribe has been authorized to administer a CWA WQS program and the tribe's own WQS are in place and approved by EPA.

    III. What would be included in the federal baseline WQS effort?

    EPA seeks input on which components of WQS to include in any federal baseline WQS effort—if it determines that such an effort is necessary—to ensure that the water quality of waters on Indian reservations is protected under the CWA. The range of WQS components that could be included are outlined in 40 CFR part 131, and include: Designated uses, narrative and numeric criteria, antidegradation requirements, and other WQS policies such as a mixing zone policy, a compliance schedule authorizing provision, and a WQS variance procedure. While EPA shares the ultimate goal of having WQS tailored to the particular circumstances of each Indian reservation, given the challenges of such an approach in a national federal rule, tailoring opportunities may be limited. However, where flexibility under the CWA and the national WQS regulation exists, any final federal baseline WQS could allow for actions based on such WQS (e.g., NPDES permitting, TMDLs) to reflect local considerations and consultation with the affected tribe(s).

    EPA invites input on how EPA should approach establishing any federal baseline WQS. For instance, should EPA establish one set of WQS that apply universally to the reservation waters covered by any final federal baseline WQS rule? Alternatively, should EPA pursue establishing federal baseline WQS that offer limited tailoring opportunities by establishing cultural and traditional designated uses that account for unique practices observed by particular tribes (see section III.C of this document), criteria that account for higher fish consumption patterns of particular tribes by establishing human health criteria using a limited range of fish consumption rates (see section III.D of this document), and establish greater protection for high quality and Outstanding National Resource Waters of particular importance to the tribe through the antidegradation provisions (see section III.E of this document)? These components are further discussed below.

    In addition, EPA seeks input on whether and how to make any potential federal baseline WQS consistent with the requirements of 40 CFR part 132. In 1995, EPA published a final rule at 40 CFR part 132, 60 FR 15366 (March 23, 1995) that implements the CWA section 118 requirement for EPA to publish water quality guidance on minimum WQS, including antidegradation policies, and implementation procedures for the Great Lakes System, and that states and authorized tribes adopt WQS, antidegradation policies, and implementation procedures consistent with the guidance. EPA invites comments on whether any potential federal baseline WQS should ensure that decisions for reservation waters in the Great Lakes System (as defined in 40 CFR 132.2) are consistent with the WQS, antidegradation policies, and implementation procedures for the Great Lakes System in 40 CFR part 132, in addition to any final federal baseline WQS, even in cases where tribes have not adopted WQS under CWA sections 303(c) and 518.

    A. To what waters would the potential federal baseline WQS apply?

    In this ANPRM, EPA invites comment on the potential scope of any federal baseline WQS. Such WQS could apply to any or all waters of the United States that are, or after the effective date of a final baseline WQS rule become, located within the exterior boundaries of an Indian reservation except: (1) Indian reservation waters for which EPA has promulgated other federal WQS; and (2) Indian reservation waters where EPA has expressly found that a tribe or state has jurisdiction to adopt WQS, and tribal or state WQS are effective under the CWA. Consistent with EPA's long-standing approach, waters of Indian reservations would include waters located within the boundaries of Pueblos as well as lands held in trust by the United States for an Indian tribe even if the land has not been formally designated as a reservation. See, e.g., 56 FR 64881 (December 12, 1991); see also Oklahoma Tax Commission v. Citizen Band Potawatomi Indian Tribe of Oklahoma, 505 U.S. 505, 511 (1991); HRI v. EPA 198 F.3d 1224 (10th Cir. 2000); Arizona Public Service Co. v. EPA, 211 F.3d 1280 (D.C. Cir. 2000).

    Indian reservations are a subset of the broader geographic area that comprises Indian country as a whole. Indian country is defined at 18 U.S.C. 1151 as: (a) All land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation; (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state; and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

    B. Which waters should be excluded from the potential federal baseline WQS?

    The objective of any federal baseline WQS would be to address the gap in CWA-effective WQS coverage, but it may be appropriate to exclude from any such WQS areas certain waters where other tribal or reservation-specific CWA WQS apply. EPA invites comments on whether federal baseline WQS, if promulgated, should automatically not apply to the following categories of Indian reservation waters:

    —Indian Reservation waters for which EPA has promulgated other, reservation-specific federal WQS. Currently, EPA has promulgated WQS for only one Indian reservation, the reservation of the Confederated Tribes of the Colville Reservation (see 40 CFR 131.35). —Indian reservation waters where EPA has explicitly found that a tribe or state has jurisdiction to adopt WQS, and the tribe or state has adopted WQS that are in effect for CWA purposes in accordance with EPA's WQS regulation at 40 CFR part 131. Currently only 42 tribes have such WQS, but more could reach this status in the future. There are also three instances where EPA has approved states to adopt WQS on reservations or parts of reservations of six Indian tribes.

    EPA invites comments on the automatic exclusions described in this section and on whether other automatic exclusions should be considered. In addition, EPA invites comment on whether the application of any exclusion to tribes should be immediate once the Regional Administrator or appropriate delegate approves an authorized tribe's own WQS for CWA purposes.

    C. What designated uses should be considered in proposing potential federal baseline WQS?

    The first key component of WQS is designated uses. EPA's WQS regulation requires states, and authorized tribes, as well as EPA per 40 CFR 131.22(c), to specify goals and expectations for how each water body is to be used. Designated uses communicate to the public a state or authorized tribe's environmental management objectives and water quality goals for its waters. Clear and accurate designated uses are essential in maintaining the actions necessary to restore and protect water quality and meet the requirements of the CWA. EPA's implementing regulation distinguishes between two broad categories of designated uses: Uses specified in CWA section 101(a)(2) and a non-101(a)(2) use. The states and authorized tribes must take these uses into consideration when designating waters. EPA invites comments on which designated uses should be established in any federal baseline WQS and whether and how to differentiate designated uses for different waters on Indian reservations that would be covered by such federal baseline WQS.

    For the federal baseline WQS effort, EPA is considering including designated uses consistent with the uses specified in section 101(a)(2) of the CWA. These uses provide for the protection and propagation of fish, shellfish, and wildlife, and recreation in and on the water, including the protection of human health when consuming fish, shellfish, and other aquatic life. Since 1983, EPA's WQS regulation has interpreted and implemented the CWA through requirements that WQS protect these CWA section 101(a)(2) uses unless states and authorized tribes, or EPA by extension, demonstrate that those uses are infeasible to attain through a use attainability analysis consistent with EPA's regulation at 40 CFR 131.10, effectively creating a rebuttable presumption of attainability. Where such uses do not appropriately reflect tribe-specific or site-specific conditions, EPA, in consultation with tribes, could subsequently modify, sub-categorize, or remove such designated uses consistent with EPA's WQS requirements. For more information on CWA section 101(a)(2) uses, please refer to EPA's Water Quality Standards Handbook, Chapter 2 Designated Uses.13 EPA requests comment on such an approach and any other alternative approach.

    13https://www.epa.gov/sites/production/files/2014-10/documents/handbook-chapter2.pdf.

    During the tribal consultation process, many tribes stressed the value and importance of protecting water quality at levels appropriate for use in various cultural and traditional activities of individual tribes. EPA does not anticipate proposing to specifically define what cultural and traditional uses are for purposes of this effort, because they can include a wide variety of uses specific to the ceremonies and traditions of each tribe and require different protections. EPA anticipates that, in some cases, the cultural and traditional uses would be adequately protected under the categories of the CWA section 101(a)(2) uses. For example, full body immersion in the water and other fishing-related cultural or traditional practices may, in some instances, be covered by the CWA section 101(a)(2) uses. However, such practices that require protection of aquatic plants used for basket weaving or water quality for ceremonial washings (uses that tribes suggested be protected during the 2015 consultation and coordination effort) may not be adequately covered by the CWA section 101(a)(2) uses.

    Accordingly, EPA seeks input on whether, and if so, how to include protection of specific or general cultural and traditional uses explicitly within the scope of the federal baseline WQS. Such a use designation would be accompanied by water quality criteria sufficient to protect the cultural and traditional uses of the tribe's reservation waters. To protect these types of uses, EPA could rely on a combination of numeric and narrative criteria. EPA, in consultation with tribes, could determine at the implementation stage which criteria are applicable to protect the cultural or traditional uses specific to a tribe's reservation waters. Tribal treaty or other reserved rights to fish, hunt, and/or gather on Indian reservations could generally be encompassed by this designated use, to the extent they are not encompassed by the other CWA section 101(a)(2) designated uses (e.g., a designated use of “fishing” or “fish harvesting” could encompass fish and shellfish consumption, and could also encompass sustenance or subsistence fish and shellfish consumption, depending on the reserved right). EPA seeks comment on the express inclusion of language designating cultural and traditional uses in the potential federal baseline WQS and any desired impacts of such a designation.

    EPA could also propose to designate a public water supply use for Indian reservation waters covered by the potential federal baseline WQS. A public water supply use is a use specified in CWA section 303(c)(2)(A), and is considered by EPA to be a non-101(a)(2) use, which means that it is unrelated to the protection or propagation of fish, shellfish, wildlife or recreation in or on the water. This designation reflects the requirements in CWA section 303(c) and EPA's implementing regulation at 40 CFR 131.10(a) that when states or authorized tribes, and EPA per 40 CFR 131.22(c), are establishing WQS, the waters' use and value for public water supplies shall be taken into consideration, and that WQS protect the public health or welfare, enhance the quality of water, and serve the purposes of the CWA. Inclusion of a public water supply use designation could help to reinforce EPA's objective to establish baseline human health goals that serve as the basis for CWA protection. Many states have established such a use on large numbers of their water bodies, and EPA anticipates that many tribes will similarly desire such a use to be established on some or most of their waters to help ensure safe drinking water. On the other hand, designating a public water supply use for Indian reservation waters could result in a designation on a water body where such a use is not attainable or otherwise not appropriate. In such instances, EPA could provide a mechanism for the tribe or other parties to provide information for EPA to consider in deciding whether to remove that designation.14 For more information on non-101(a)(2) uses, please refer to EPA's Water Quality Standards Handbook, Chapter 2 Designated Uses.

    14 EPA would remove the designation in a manner similar to how states and authorized tribes can remove such non-101(a)(2) uses in accordance with EPA's regulation at 40 CFR 131.10(k)(3).

    EPA is seeking comment on whether the public water supply use is an applicable or suitable use that should be proposed for Indian reservation waters. Options could include not promulgating this use at all for Indian reservation waters, promulgating for all Indian reservation waters, promulgating for some Indian reservation waters, or not promulgating the use for those specific Indian reservation waters identified as unsuitable for such a use prior to finalization of any potential federal baseline WQS rule.

    As noted previously, EPA recognizes that it is possible that designated uses set forth in any federal baseline WQS may not ultimately reflect tribe-specific or site-specific conditions or the actual attainability of certain uses. In such circumstances, EPA could subsequently modify, sub-categorize, or remove designated uses that would be established in the potential federal baseline WQS or add additional uses in order to provide limited tailoring of the federal baseline designated uses. This could be accomplished through subsequent federal promulgations consistent with EPA's regulation at 40 CFR part 131.15 In undertaking any such modification or tailoring, EPA would expect to work in consultation with tribes to assemble information to develop requisite analyses required by the regulation. EPA could also consider ways to streamline any subsequent federal rulemakings, including “batching” designated use modifications that pertain to multiple tribes and delegating such rulemaking authority to the EPA Regional Administrators. EPA solicits comment on this potential approach to appropriately modifying or tailoring any potential federal baseline WQS to address site-specific issues.

    15 Consistent with 40 CFR 131.10, (1) a revision to a use specified in CWA section 101(a)(2) or a sub-category of such a use requires a use attainability analysis and identification of the highest attainable use and associated criteria; and (2) a revision to a non-101(a)(2) use, such as public water supply, requires a use and value demonstration as described in 40 CFR 131.10(a).

    EPA continues to encourage tribes who are interested in establishing WQS that reflect site-specific, tailored designated uses better suited to particular Indian reservations to obtain TAS for WQS and adopt their own WQS for EPA review and approval.

    D. What water quality criteria should be considered in proposing potential federal baseline WQS?

    EPA's current WQS regulation at 40 CFR 131.11 requires adoption of water quality criteria that protect designated uses. Such criteria must be based on sound scientific rationale, must contain sufficient parameters to protect the designated use, and may be expressed in either narrative or numeric form. (See 40 CFR 131.11(a) and (b).) In adopting water quality criteria, states and authorized tribes should establish numeric values based on CWA section 304(a) criteria, CWA section 304(a) criteria modified to reflect site-specific conditions, or other scientifically defensible methods. (See 40 CFR 131.11(b).) As discussed more fully below, CWA section 303(c)(2)(B) requires states and authorized tribes to adopt numeric criteria for priority toxic pollutants for which EPA has developed CWA section 304(a) recommended criteria. CWA section 304(a)(1) requires EPA to develop and publish, and from time to time update, criteria for water quality accurately reflecting the latest scientific knowledge regarding concentrations of specific chemicals or levels of parameters in water that protect aquatic life and human health. Water quality criteria recommendations developed under CWA section 304(a)(1) are based on sound scientific rationale, are protective of the designated use(s), and are based solely on data and scientific judgments on the relationship between pollutant concentrations and environmental and human health effects. CWA section 304(a)(1) criteria do not reflect consideration of economic impacts or the technological feasibility of meeting the chemical concentrations in ambient water. EPA's regulation at 40 CFR 131.11(b)(2) provides that states and authorized tribes should also establish narrative criteria where numeric criteria cannot be determined or to supplement numeric criteria. Per 40 CFR 131.22(c), these requirements apply equally to EPA when promulgating federal WQS. Narrative criteria are descriptions of the conditions necessary to attain a water body's designated use, while numeric criteria are values expressed as levels, concentrations, toxicity units or other numbers that quantitatively define the desired condition of the water body.16 Most state and authorized tribal WQS include both narrative and numeric water quality criteria.

    16 See EPA's Water Quality Standards Handbook, Chapter 3, section 3.5.2. https://www.epa.gov/sites/production/files/2014-10/documents/handbook-chapter3.pdf.

    1. Narrative Water Quality Criteria

    In considering potential approaches to narrative criteria that could be included in any proposed federal baseline WQS, EPA could look to the Quality Criteria for Water, 1986 (“Gold Book”). EPA could establish a narrative water quality criterion that provides that waters must be free from toxic, radioactive, conventional, non-conventional, deleterious, or other polluting substances in amounts that will prevent attainment of the designated uses specified above. EPA could also establish narrative criteria that provide that all waters must be free from substances attributable to wastewater or other dischargers that: (1) Settle to form objectionable deposits; (2) float as debris, scum, oil, or other matter to form nuisances; (3) produce objectionable color, odor, taste, or turbidity; (4) injure or are toxic or produce adverse physiological responses in humans, animals or plants; and/or, (5) produce undesirable or nuisance aquatic life, including excess algae. Such narrative criteria would be considered when identifying the level of protection sufficient to protect any designated uses established in federal baseline WQS, as outlined in section III.C and consistent with 40 CFR 122.44(d), when making WQS implementation decisions. EPA notes that all states have narrative criteria for the protection of designated uses.

    EPA could also include narrative criteria that are specifically intended to protect a designated use that includes water-based activities essential to maintaining cultural and traditional practices that might not be adequately covered by the numeric criteria included in the federal baseline WQS. For example, during consultation with EPA, some tribes expressed an interest in protecting wild rice for consumption and reeds for basket weaving. To help better protect those resources, EPA could include a narrative criterion that provides that water quality associated with certain designated uses be free from pollutants in amounts that prevent the growth of aquatic plants regularly harvested by tribes for cultural or traditional activities.

    EPA seeks input on whether to include narrative criteria in any proposed federal baseline WQS and, if so, how best to approach the development of such criteria. Specifically, EPA solicits comment on the inclusion of the narrative criteria discussed above, particularly those intended to protect cultural and traditional uses, as well as other suggestions regarding how to protect a tribe's cultural and traditional practices.

    In addition, EPA invites comments on how to establish a narrative criterion specifically intended for the protection of downstream waters. Pursuant to CWA sections 303 and 101(a), the federal regulation at 40 CFR 131.10(b) requires that “In designating uses of a water body and the appropriate criteria for those uses, the [s]tate shall take into consideration the water quality standards of downstream waters and shall ensure that its water quality standards provide for the attainment and maintenance of the water quality standards of downstream waters.” This provision requires states and authorized tribes, and EPA per 40 CFR 131.22(c), to consider and ensure the attainment and maintenance of downstream WQS during the establishment of designated uses and water quality criteria in upstream waters.

    EPA's current policy on downstream protection is described in a document entitled, Protection of Downstream Waters in Water Quality Standards: Frequently Asked Questions (June 2014) and includes descriptions of numeric and narrative approaches to ensure the maintenance and attainment of downstream WQS.17 Options to address downstream protection include, but are not limited to, downstream protection values developed in tandem with upstream criteria, use of water quality modeling to ensure upstream criteria are protective of downstream WQS, numeric criteria, and customized narratives. States and authorized tribes have reasonable discretion in choosing their preferred approach to downstream protection based on their individual circumstances. As described in that document, EPA has developed a set of four customizable templates18 for narrative downstream protection criteria to assist states and authorized tribes with developing a downstream protection narrative criterion. These templates may be used to develop a “broad narrative” criterion that provides basic legal coverage under 40 CFR 131.10(b) (e.g., applies to all waters in the reservation) as well as a variety of “tailored narratives” that can be developed to address specific water bodies, pollutants, and/or water body types.

    17https://nepis.epa.gov/Exe/ZyPDF.cgi/P100LIJF.PDF?Dockey=P100LIJF.PDF.

    18https://www.epa.gov/wqs-tech/templates-narrative-downstream-protection-criteria-state-water-quality-standards.

    EPA invites comment on consideration of a downstream protection narrative criterion and seeks input on suggested narrative language, which may be informed through use of the customizable templates. EPA solicits any additional suggestions for other options.

    2. Numeric Water Quality Criteria

    As noted previously, in accordance with 40 CFR 131.11(b), states and authorized tribes, and EPA per 40 CFR 131.22(c), should establish numeric water quality criteria, unless numeric criteria cannot be established. At minimum, and as noted above, pursuant to CWA section 303(c)(2)(B), numeric water quality criteria must be established for the CWA section 307(a)(1) toxic pollutants.19 20 For regulatory purposes, EPA has translated the 65 compounds and families of compounds listed under CWA section 307(a) (which potentially include thousands of specific compounds) into 126 specific toxic substances, which are often referred to as the “priority toxic pollutants.”

    19 The CWA section 307(a)(1) list of toxic pollutants is codified at 40 CFR 401.15.

    20 Where numeric criteria are not available for such priority toxic pollutants, CWA section 303(c)(2)(B) requires adoption of water quality criteria based on biological monitoring or assessment methods consistent with EPA guidance published pursuant to CWA section 304(a)(8).

    EPA seeks input on whether to establish numeric criteria for any federal baseline WQS for all parameters for which EPA has published CWA section 304(a) criteria recommendations, or for some other set of parameters. These include criteria recommendations for both priority toxic pollutants discussed previously as well as many other pollutants and parameters. EPA also invites comments on additional options to consider when establishing numeric criteria, as well as alternative approaches to numeric criteria that could help form the basis for any federal baseline WQS.

    a. Aquatic Life Protection

    For the federal baseline WQS effort, EPA could include numeric criteria for the protection of aquatic life for all pollutants for which EPA has published CWA section 304(a)(1) criteria recommendations. EPA has established recommended aquatic life criteria under CWA section 304(a) for 60 pollutants; for a full listing and description of these criteria see https://www.epa.gov/wqc/national-recommended-water-quality-criteria-aquatic-life-criteria-table.21

    21 These criteria were derived by EPA using its Guidelines for Deriving Numerical National Water Quality Criteria for the Protection of Aquatic Organisms and Their Uses. https://www.epa.gov/wqc/guidelines-deriving-numerical-national-water-quality-criteria-protection-aquatic-organisms-and

    Regarding criteria for temperature, EPA recognizes that temperature varies significantly, not only nationally but on a regional and local scale. For instance, temperature requirements for a warm water fishery differ from temperature requirements protective of a cold water fishery, and different stages of aquatic life may in turn need different protective WQS. The appropriate temperature WQS to protect aquatic life, therefore, may vary among and within reservations depending on the location of the reservations and the species endemic to the waters. Due to the broad applicability of the potential federal baseline WQS to Indian reservations across the United States, EPA is interested in obtaining comment on recommended approaches for addressing temperature that would be protective of the federally promulgated designated uses included in any potential federal baseline WQS rule. Specifically, EPA solicits comment on using a narrative temperature criterion to account for significant variability in temperature requirements of aquatic species in different regions, different water bodies, and different temperature sensitivities among species to protect and restore the natural thermal regime (spatial, temporal, seasonal, diurnal) that is protective of the most thermally sensitive species. The translation of this temperature narrative criterion would be conducted during CWA implementation (such as permit, assessment, TMDL programs) to protect the specific aquatic life uses at a site.

    Similarly, the appropriate criteria for nutrients may vary among and within reservations depending on the location of the reservations. EPA invites comments on whether and how to include numeric and/or narrative nutrient criteria in any potential federal baseline WQS rule given the resource implications in developing appropriate numeric nutrient criteria for such a large number of water bodies over such a broad geographic area. EPA solicits comment on other potential approaches to addressing nutrients in any potential federal baseline WQS rule.

    EPA invites comments on the numeric aquatic life criteria that could be included in any potential federal baseline WQS rule. EPA also invites comments on additional options to consider when establishing numeric criteria for the protection of aquatic life, as well as alternative approaches to numeric criteria for the protection of aquatic life that could help form the basis for any federal baseline WQS.

    b. Human Health Protection

    For the federal baseline WQS effort, EPA could include numeric criteria for the protection of human health for all pollutants for which EPA has published CWA section 304(a) criteria recommendations. EPA has published recommended human health criteria under CWA section 304(a) for 122 pollutants; for a full listing and description of these criteria, see https://www.epa.gov/wqc/national-recommended-water-quality-criteria-human-health-criteria-table.

    To derive criteria for the protection of human health, EPA looks first to its 2000 Human Health Methodology.22 Human health criteria are based on two types of biological endpoints: (1) Carcinogenicity and (2) systemic toxicity (i.e., all adverse effects other than cancer). EPA takes an integrated approach and considers both cancer and non-cancer effects when deriving human health criteria. Where sufficient data are available, EPA derives criteria using both carcinogenic and non-carcinogenic toxicity endpoints and chooses the lower value. Human health criteria for carcinogenic effects are calculated using the following input parameters: Cancer slope factor, cancer risk level, body weight, drinking water intake rate, fish consumption rate, and a bioaccumulation factor(s). Human health criteria for non-carcinogenic and nonlinear carcinogenic effects are calculated using a reference dose in place of a cancer slope factor and cancer risk level, as well as a relative source contribution, which is intended to ensure that an individual's total exposure from all sources does not exceed the criteria. Each of these inputs is discussed in more detail in this section and in EPA's 2000 Human Health Methodology.

    22 USEPA. 2000. Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health. U.S. Environmental Protection Agency, Office of Water, Washington, DC EPA-822-B-00-004. https://www.epa.gov/wqc/human-health-water-quality-criteria.

    As discussed in this section, EPA seeks additional comment on two of the human health criteria input parameters: The cancer risk level and the fish consumption rate, which may vary depending on policy decisions, other applicable federal laws, and data availability.

    EPA invites comments on the human health criteria that could be included in any federal baseline WQS rule. EPA also invites comments on alternative approaches to numeric criteria for the protection of human health that could help form the basis for any federal baseline WQS.

    Cancer Risk Level

    EPA's CWA section 304(a) national recommended human health criteria generally assume that carcinogenicity is a “non-threshold phenomenon,” which means that there are no “safe” or “no-effect” levels because even extremely small doses are assumed to cause a finite increase in the incidence of cancer. Therefore, EPA calculates CWA section 304(a) human health criteria for carcinogenic effects as pollutant concentrations corresponding to lifetime increases in the risk of developing cancer.23 EPA calculates its CWA section 304(a) human health criteria values at a 10 6 (one in one million) cancer risk level and recommends cancer risk levels of 10 6 or 10 5 (one in one hundred thousand) for the general population. EPA notes that states and authorized tribes can also choose other risk levels, such as 10 7 (one in ten million), when deriving human health criteria.

    23 As noted above, EPA recommends the criteria derived for non-carcinogenic effects if it is more protective (lower) than that derived for carcinogenic effects.

    If the pollutant is not considered to have the potential for causing cancer in humans (i.e., systemic toxicants), EPA assumes that the pollutant has a threshold below which a physiological mechanism exists within living organisms to avoid or overcome the adverse effects of the pollutant.

    For the federal baseline WQS effort, EPA could calculate human health criteria using the 10 6 (one in one million) cancer risk level to ensure that the resulting criteria are sufficiently protective and based on a sound scientific rationale. EPA invites comments on this approach and seeks input on other potential options, such as 10 5 or 10 7.

    Fish Consumption Rate

    As noted previously, the fish consumption rate is one of the input parameters used to calculate human health criteria. EPA generally recommends selecting a fish consumption rate that is based upon local data and, where sufficient data are available, selecting a fish consumption rate that reflects consumption that is not suppressed by fish availability or concerns about the safety of available fish.24 However, given the broad geographic scope of this potential federal baseline WQS rule, it could be challenging to identify reservation-, water-, or even region-specific fish consumption rates based on available data. EPA current thinking is to propose a more limited set of options to address fish consumption rate in any potential numeric human health criteria that may be proposed as part of a federal baseline WQS regulation. Some potential options include:

    24 USEPA. January 2013. Human Health Ambient Water Quality Criteria and Fish Consumption Rates: Frequently Asked Questions. https://www.epa.gov/wqc/human-health-ambient-water-quality-criteria-and-fish-consumption-rates-frequently-asked.

    —EPA's national default fish consumption rate of 22 g/day, which is a 90th percentile value found to be reasonable and adequately representative of the general population of fish consumers based on the 2003-2010 data from the National Health and Nutrition Examination Survey (NHANES).25

    25 EPA's national fish consumption rate is based on the total rate of consumption of fish and shellfish from inland and nearshore waters (including fish and shellfish from local, commercial, aquaculture, interstate, and international sources). USEPA. January 2013. Human Health Ambient Water Quality Criteria and Fish Consumption Rates: Frequently Asked Questions. https://www.epa.gov/wqc/human-health-ambient-water-quality-criteria-and-fish-consumption-rates-frequently-asked.

    —EPA's national default subsistence value of 142 g/day, representing subsistence fishers whose daily consumption is greater than the general population, as presented in EPA's 2000 Human Health Methodology. —160 g/day, which provides for half of the USDA's recommended daily protein intake from all sources to come from fish consumption (which would assume the other half would come from sources other than fish and shellfish). —175 g/day, the 95th percentile value of the data from surveyed tribal members in the Fish Consumption Survey of the Umatilla, Nez Perce, Yakama, and Warm Springs Tribes of the Columbia River Basin (Columbia River Inter-Tribal Fish Commission (CRITFC), 1994).26

    26 Accounts for consumption of fish from inland and nearshore waters, as well as anadromous fish.

    EPA could consider proposing an approach in which it assigns, as a default, human health criteria based on one of the four fish consumption rate options above to all reservations, and allow affected tribal governments, should they so request in comments, to select one of the other three options above for their reservations, based on any applicable rights reserved in treaties or other federal law, and available data and information. In such a case, EPA could promulgate reservation-specific human health criteria based on one of the other three alternative fish consumption rates for such reservation(s). EPA invites comments this approach, as well as comments on additional options to consider when establishing numeric criteria for the protection of human health as part of the federal baseline WQS effort.

    During consultation, EPA heard a number of tribes suggest that their own specific survey data be used in calculating the fish consumption rate for human health criteria for a specific reservation. EPA recognizes why such an approach may be attractive to tribes, but has concerns that attempting to provide individual, reservation-specific tailoring opportunities could present a very large workload that could substantially delay proposal and finalization of any federal baseline WQS effort. EPA notes that an alternative approach to fully tailor WQS to a particular reservation is through the TAS and WQS adoption processes. EPA requests comment on these considerations and how they should be addressed in any potential federal baseline WQS regulation.

    E. What approaches should the potential federal baseline WQS take with regard to antidegradation requirements?

    Maintaining high water quality is critical to supporting economic and community growth and sustainability. Protecting high water quality also provides a margin of safety that will afford the water body increased resilience to potential future stressors, including climate change. While preventing degradation and maintaining a reliable source of clean water involves costs, it can be more effective and efficient than investing in long-term restoration efforts or remedial actions.

    Antidegradation requirements are an essential component of WQS and play a critical role in maintaining and protecting the valuable water resources. Although designated uses and criteria are the primary tools used to achieve the goals of the CWA, antidegradation requirements complement these by providing a framework for making decisions regarding changes in water quality. In the 1987 amendments to the CWA, Congress expressly affirmed the principle of antidegradation that is reflected in section 101 of the Act to “maintain the chemical, physical and biological integrity of the Nation's waters.” In the 1987 amendments, Congress incorporated a reference to antidegradation policies in CWA section 303(d)(4)(B), thus confirming that an antidegradation policy is an integral part of the CWA and explaining the relationship between the antidegradation policies and other regulatory programs under the CWA.

    The federal antidegradation regulation requires development and adoption of an “antidegradation policy” and development of “antidegradation implementation methods.” 40 CFR 131.12. The intent of an antidegradation policy is to ensure that in all cases, at a minimum: (1) Water quality necessary to support existing uses is maintained; (2) that where water quality is better than the minimum level necessary to support protection and propagation of fish, shellfish and wildlife, and recreation in and on the water, that water quality is also maintained and protected unless, through a public process, some lowering of water quality is deemed to be necessary to accommodate important economic or social development in the area in which the water is located; and (3) waters identified as Outstanding National Resource Waters are protected. For the purposes of EPA's national WQS regulation, “antidegradation policies” must be in rule or other legally binding form, and must be consistent with the requirements of 40 CFR 131.12(a). “Antidegradation implementation methods” refer to any additional documents and/or provisions developed by a state or authorized tribe, and EPA per 40 CFR 131.22(c), which describes methods for implementing its antidegradation policy, whether or not the state or authorized tribe formally adopts the methods in regulation or other legally binding form. EPA's initial thinking is that any proposed federal baseline WQS would include both an antidegradation policy and antidegradation implementation methods. EPA seeks input on establishing antidegradation requirements for any federal baseline WQS, whether antidegradation implementation methods should be included in rule, as well as alternative approaches that could help form the basis for any federal baseline WQS.

    1. Antidegradation Policy

    The antidegradation policy provisions of any federal baseline WQS rule would have to be consistent with the federal antidegradation policy at 40 CFR 131.12(a).27 Such provisions would establish baseline levels of water quality protection for Indian reservation waters, as required, by the CWA and federal WQS regulation. EPA notes that the language in any federal baseline WQS rule would need to be slightly different from 40 CFR 131.12(a) in order to make the policy easier to understand in the federal baseline WQS context.

    27 40 CFR 131.12(a) outlines the required contents of state and authorized tribal antidegradation policies; 40 CFR 131.22(c) makes clear that in promulgating WQS, EPA is subject to the same policies, procedures, analyses, and public participation requirements established for states and authorized tribe in the national WQS regulation (e.g., the requirements at 40 CFR 131.12(a)).

    When identifying high quality (or Tier 2) waters, EPA's initial thinking is that high quality waters could be identified, at the time a lowering of water quality is proposed, on a parameter-by-parameter basis. The national WQS regulation allows states and authorized tribes, and EPA per 40 CFR 131.22(c), to utilize either a parameter-by-parameter basis or a water body-by-water body basis to identify high quality waters (see 40 CFR 131.12(a)(2)(i)). Under the parameter-by parameter approach, states, authorized tribes (and EPA where necessary) determine whether water quality is better than the applicable criteria for a specific parameter or pollutant that would be affected by a new discharge or an increase in an existing discharge of the pollutant. For example, if zinc levels were 20 milligrams per liter (mg/L) and the applicable criterion was 120 mg/L, that water body would be a high quality water for zinc, but might not necessarily be high quality for another parameter. Determining which parameters are at a quality higher than necessary to support the CWA section 101(a)(2) uses is generally made at the time of a permit application for a new discharge or an increase in an existing discharge of the pollutant in question. The parameter-by-parameter basis is straightforward, may result in more Tier 2 protections being afforded to more waters, and lends itself to greater public transparency. EPA seeks input on identifying high quality waters using the parameter-by-parameter basis in any federal baseline WQS rulemaking.

    EPA's initial thinking is that water bodies could be identified that are of exceptional recreational, ecological, or other significance (e.g., Outstanding National Resource Waters). This provision would be consistent with 40 CFR 131.12(a)(3), and in effect, could establish the highest level of protection by prohibiting the lowering of water quality. Any proposed federal baseline WQS could outline a nomination process to identify Indian reservation waters that warrant protection as an Outstanding National Resource Water. Such a process could specify that any interested party may nominate a specific water for such protection and that the Regional Administrator, in consultation with the appropriate tribal government(s), will make the final decision to assign the water as an Outstanding National Resource Water. A decision to assign a water as an Outstanding National Resource Water is subject to the public participation requirements of 40 CFR part 25, although a public hearing is not required.

    EPA invites comments on the antidegradation policy outlined in this section and how this could be reflected in any potential federal baseline WQS proposal. EPA also seeks input on any additional options to consider when establishing an antidegradation policy for any potential federal baseline WQS rule.

    2. Antidegradation Implementation Methods

    Consistent with 40 CFR 131.12(b), methods to implement the antidegradation policy must be developed, provide an opportunity for public involvement, and be made available to the public. While antidegradation implementation methods are not required to be contained in regulation, EPA is considering whether to include antidegradation implementation methods as a section of any proposed federal baseline WQS regulation. Because the antidegradation implementation methods would inform permit decisions and other implementation actions, EPA's current view is that for public transparency and for consistency in implementation, any federal baseline WQS effort should include antidegradation implementation methods in regulation. EPA invites comments on whether and how EPA could establish antidegradation implementation methods for any potential federal baseline WQS rulemaking. EPA also seeks input on any additional options to consider when establishing antidegradation implementation methods for any potential federal baseline WQS rule.

    The WQS regulation at 40 CFR 131.12 does not specify minimum elements that must be included in antidegradation implementation, however, EPA provided a list of the areas that antidegradation implementation methods would need to address, at a minimum, to be consistent with the national WQS regulation (see 78 FR 58530, September 4, 2013). The list of minimum elements includes: (1) Scope and applicability; (2) Existing uses protection; (3) High quality water protection, including how high quality waters are to be identified, and the analyses and procedures that must be met to determine whether to allow a lowering of high quality waters; (4) Outstanding National Resource Water protection; and (5) Thermal Discharges.28 The federal baseline WQS effort could establish antidegradation implementation methods for each of these minimum elements.

    28 EPA is not requesting comment on EPA's interpretation of CWA section 316 or the implementing regulation at 40 CFR 124.66.

    EPA invites comments on the components and contents of the antidegradation implementation methods that could be established to meet the minimum elements, as well as any additional options to consider when establishing antidegradation implementation methods for any potential federal baseline WQS rule.

    F. How could wetlands be addressed in the potential federal baseline WQS?

    The national WQS regulation at 40 CFR 131.3(i) defines WQS as “provisions of [s]tate 29 or Federal law which consist of a designated use or uses for the waters of the United States and water quality criteria for such waters based upon such uses. WQS are to protect the public health or welfare, enhance the quality of water and serve the purposes of the Act.” Wetlands that are “waters of the United States” can be covered by federal WQS that help to provide a mechanism for their protection. A number of states have established WQS for wetlands, and EPA recently worked together with the Association of Clean Water Administrators to establish a template to assist states and authorized tribes in establishing narrative WQS for wetlands.

    29 EPA's regulation, at 40 CFR 131.3(j), defines “state” to include the “50 States, the District of Columbia, Guam, the Commonwealth of Puerto Rico, Virgin Islands, American Samoa, the Commonwealth of the Northern Mariana Islands, and Indian Tribes that EPA determines to be eligible for purposes of the water quality standards program.”

    Wetlands often need specialized WQS because they have different functions and different vulnerability and wetland-specific WQS can provide robust protection for wetlands and their functions. Wetlands exist as ecosystems along the margins (land-sea, land-lake, land-river) and in depressional landscapes (e.g., prairie potholes in the Midwest and kettle-hole wetlands in the northern United States). By season and location, wetlands experience variable water depth and velocity, soil type and saturation levels, vegetation, nutrient levels, sediment type, and oxygen demand, both within a given wetland and among wetland types.

    EPA seeks comment on whether to include specific WQS provisions for the protection of wetlands WQS and, if so, suggestions for language, considerations, and approaches for doing so. Such wetland-specific WQS could include specific designated uses, narrative criteria, and antidegradation requirements developed from EPA's online template, see https://www.epa.gov/wqs-tech/templates-developing-wetland-water-quality-standards.

    G. Which general provisions should be included in the potential federal baseline WQS?

    As specified in 40 CFR 131.13—131.15, WQS can generally include certain discretionary policies that generally affect how WQS are applied or implemented. Most common among such provisions are those addressing mixing zones, compliance schedules authorizing provisions, and WQS variances. EPA requests input on whether it would be appropriate to include such provisions in any proposed federal baseline WQS regulation and, if so, which provisions and how they should be framed. EPA requests specific comment on inclusion of the following three WQS provisions that EPA is considering to ensure effective implementation of any potential federal baseline WQS proposal.

    1. Mixing Zone Authorizing Provision

    Should EPA consider inclusion of a provision in the potential federal baseline WQS rule, if promulgated, to allow EPA to establish mixing zones in permitting scenarios on a case-by-case basis after consultation with the appropriate tribal government(s)?

    EPA's guidance on mixing zones has been detailed in a number of Agency publications, including EPA's Water Quality Standards Handbook, Chapter 5, General Policies and the Technical Support Document for Water Quality-based Toxics Control (TSD), March 1991, p33-34, 70-78.

    EPA invites comments on whether to include a mixing zone authorizing provision in any potential federal baseline WQS rule, as well as any additional options to consider when establishing a mixing zone authorizing provision.

    2. Compliance Schedule Authorizing Provision

    Should EPA consider inclusion of a compliance schedule authorizing provision in the potential federal baseline WQS rule, if promulgated, to allow compliance schedules to be included in NPDES permits on a case-by-case basis when appropriate after consultation with the appropriate tribal government(s)? Such authorizing provision would allow for compliance schedules to be included in NPDES permits to allow permittees additional time to achieve compliance with effluent limitations implementing the requirements of the CWA and applicable regulations.

    By including such a provision, the potential federal baseline WQS would authorize EPA to include a compliance schedule, when appropriate and consistent with 40 CFR 122.47, in a NPDES permit for a new, recommencing or existing discharger to Indian reservation waters of the United States. Where it did so, the discharger to whom a permit was issued or reissued on or after the effective date of the final rule would have to comply with the permit limitations and requirements by the compliance schedule date. A new source or new discharger to Indian reservation waters of the United States would not be eligible for a compliance schedule unless it meets the requirements of 40 CFR 122.47(a)(2). If a new source or new discharger is not granted a compliance schedule, it must comply with any water quality-based effluent limitation in a permit issued on or after the effective date of the final rule upon commencing discharge.

    EPA invites comment on the inclusion of a compliance schedule authorizing provision as part of any potential federal baseline WQS rule, as well as any additional options to consider when establishing a compliance schedule authorizing provision.

    3. WQS Variance Authorizing Provision

    Should EPA consider inclusion of a provision that would establish a process for EPA to issue WQS variances on a case-by-case basis after consultation with the appropriate tribal government(s)?

    A WQS variance is a time-limited designated use and criterion (i.e., interim requirements) that is targeted to a specific pollutant(s), source(s), and/or water body segment(s) that reflects the highest attainable condition during the specified time period. As such, a WQS variance requires a public process and EPA review and approval under CWA section 303(c). While the underlying designated use and criterion reflect what is ultimately attainable, the WQS variance reflects the highest attainable condition for a specific timeframe and is, therefore, less stringent. The interim requirements specified in the WQS variance apply only for CWA section 402 permitting purposes and in issuing certifications under section 401 of the CWA for the pollutant(s), permittee(s), and/or water body or waterbody segment(s) covered by the WQS variance.

    Such interim requirements may be adopted based on documentation demonstrating the need for a WQS variance consistent with 40 CFR 131.14(b)(2). Where the underlying designated use and criterion are not being met, WQS variances that reflect a less stringent, time-limited designated use and criterion would allow dischargers additional time to implement adaptive management approaches to improve water quality, but still retain the underlying designated use as a long term goal for the water body. WQS variances can apply to individual dischargers, multiple dischargers, and to entire water bodies or segments.

    A WQS variance serves as the basis for the water quality-based effluent limit in NPDES permits. However, the interim requirements do not replace the underlying designated use and criteria for the water body as a whole for all CWA purposes. A WQS variance is designed to lead to improved water quality over the duration of the WQS variance and, in some cases, full attainment of designated uses due to advances in treatment technologies, control practices, or other changes in circumstances, thereby furthering the objectives of the CWA. For more information on WQS variances, please refer to EPA's final rulemaking to update the national WQS regulation.30

    30 80 FR 51019, August 21, 2015. https://www.thefederalregister.org/fdsys/pkg/FR-2015-08-21/pdf/2015-19821.pdf.

    EPA's current regulation allows for adoption of a WQS variance, consistent with 40 CFR 131.14, as part of a state or authorized tribe's WQS. EPA would consider establishing WQS variances to EPA's promulgated federal baseline designated uses and criteria on a case-by-case basis in consultation with tribes. Recognizing such tribes may have limited resources and minimal to no expertise with WQS development and administration, EPA could work in consultation with the affected tribal government(s) to assemble documentation to justify a WQS variance and meet the requirements of 40 CFR 131.14, as appropriate.

    EPA invites comments on the inclusion of a WQS variance authorizing provision as outlined in this section, any additional options to consider when establishing a WQS variance provision for any potential federal baseline WQS rule, and on the implementation of the WQS variance provision.

    H. Can tribes adopt WQS of their own?

    In any final federal baseline WQS rule, EPA could include an explicit section to make clear that a tribe approved for TAS eligibility under CWA section 518 would continue to be able to adopt WQS of its own and submit them to EPA for approval, even after baseline WQS became effective. The tribe would need to apply to EPA for TAS to administer the WQS program. If EPA determines the tribe is eligible to administer the program, using the eligibility criteria and procedures in 40 CFR 131.8, then EPA would review the WQS adopted and submitted by the tribe to EPA. At that point, EPA reviews the submission under the process it regularly uses for tribes and states to ensure they are consistent with the requirements of the CWA and EPA's implementing regulation at 40 CFR part 131, and can approve in whole or in part.31 For any such WQS that are approved, the corresponding federal baseline WQS rule would no longer apply to such tribe's reservation waters because such waters would fall within the categories of waters excluded from any federal baseline WQS rule, namely reservation waters with CWA-effective WQS. Therefore, the federal baseline WQS would not affect a tribe's ability to apply to administer its own WQS program and adopt WQS under 40 CFR 131.8.

    31 CWA section 303(c)(2) requires states and authorized tribes to submit new and revised WQS to EPA for review. EPA is required to review and approve or disapprove the WQS pursuant to CWA section 303(c)(3). EPA's goal is to work closely and collaboratively with states and authorized tribes throughout the WQS development and revision process.

    EPA invites comments on the inclusion of a section making clear that tribes, at any time, may seek TAS and, if approved by EPA, submit their own WQS for CWA purposes as outlined in this section.

    IV. Statutory and Executive Order Review A. Statutory and Executive Order Reviews

    Under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993), this is a “significant regulatory action” because the action raises novel legal or policy issues. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Order 12866 and any changes made in response to OMB recommendations have been documented in the docket for this action. Because this action does not propose or impose any requirements, and instead seeks comments and suggestions for the Agency to consider in possibly developing a subsequent proposed rule, the various statutes and Executive Orders that normally apply to rulemaking do not apply in this case. Should EPA subsequently determine to pursue a rulemaking, EPA will address the statutes and Executive Orders as applicable to that rulemaking.

    B. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This ANPRM seeks input on key issues related to whether and how to fill the gap of WQS coverage in Indian reservation waters. In preparation for this ANPRM effort, EPA consulted and coordinated with tribal officials, consistent with EPA's Policy on Consultation and Coordination with Indian tribes. EPA initiated consultation in the Fall of 2015, from August through November, and then continued consultation in the Summer of 2016, from June to August. During that time, EPA received considerable input from tribal officials, most of it supportive of this effort. The types of questions posed by tribal officials are reflected in this ANPRM for further discussion and public comment. EPA will continue to consult, coordinate, and engage tribes, to permit them to have meaningful and timely input into development of any potential federal baseline WQS rulemaking.

    EPA invites comment from tribes on whether establishing federal baseline WQS is an appropriate step in advancing the federal trust responsibility to federally recognized tribes, and enhancing tribal government sovereignty through protection of reservation water quality. EPA is interested in any input regarding whether there are any concerns that would warrant not including a tribe in any final federal baseline WQS rule. While EPA is considering proposing to apply these WQS to all Indian reservations without CWA-effective WQS, in order to meet the goals of the CWA and better protect Indian reservation waters, EPA invites comment on other options.

    List of Subjects in 40 CFR Part 131

    Environmental protection, Indians—lands, Intergovernmental relations, Reporting and recordkeeping requirements, Water pollution control.

    Dated: September 19, 2016. Gina McCarthy, Administrator.
    [FR Doc. 2016-23432 Filed 9-28-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 226 [Docket No. 150818735-6236-01] RIN 0648-BF28 and 0648-BF32 Endangered and Threatened Species; Designation of Critical Habitat for Five Distinct Population Segments of Atlantic Sturgeon; Reopening of Public Comment Period AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Proposed rule, reopening of public comment period.

    SUMMARY:

    NMFS hereby reopens the comment period on the proposed designation of critical habitat for five distinct population segments (DPSs) of Atlantic sturgeon. Critical habitat for the five DPSs was proposed in two separate proposed rules, published on June 3, 2016, with a 90-day comment period.

    DATES:

    The comment period for the proposed rules that published on June 3, 2016 (81 FR 35701 and 81 FR 36078) are reopened. Comments must be submitted via the Federal eRulemaking Portal or received at the appropriate address (see ADDRESSES) by October 14, 2016.

    ADDRESSES:

    You may submit comments, identified by NOAA-NMFS-2015-0107 for the proposed rule for the Gulf of Maine, New York Bight, and Chesapeake Bay DPSs and identified by NOAA-NMFS-2015-0157 for the Carolina and South Atlantic DPSs, by either of the following methods:

    Electronic Submissions: Submit all electronic public comments via the Federal eRulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0107 or www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0157, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: For docket NOAA-NMFS-2015-0107, submit comments to Assistant Regional Administrator, Protected Resources Division, NMFS, Greater Atlantic Regional Office, 55 Great Republic Drive, Gloucester, MA 01930. For docket NOAA-NMFS-2015-0157, submit comments to Assistant Regional Administrator, Protected Resources Division, NMFS, Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701.

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by us. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. We will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    FOR FURTHER INFORMATION CONTACT:

    Andrew Herndon, NMFS, SERO at 727-824-5312; Lynn Lankshear, NMFS, GARFO at 978-282-8473; or Lisa Manning, NMFS, Office of Protected Resources at 301-427-8466.

    SUPPLEMENTARY INFORMATION:

    Reopening

    On June 3, 2016, we, NMFS, published two proposed rules (81 FR 35701and 81 FR 36078) to designate critical habitat for the Gulf of Maine, New York Bight, Chesapeake Bay, Carolina, and South Atlantic DPSs of Atlantic sturgeon under the Endangered Species Act of 1973 (ESA), as amended. A 90-day public comment period was provided. Public comments were due by September 1, 2016. NMFS received multiple requests for extension of the comment period. Based on the requests, the comment period for each of these proposed rules is reopened for an additional 15 days to provide further opportunity for public comment.

    We are soliciting comments from the public on all aspects of the proposal, including information on the economic, national security, and other relevant impacts. Comments already received during the 90-day comment period and additional comments received during the reopened 15-day comment period will be considered prior to making the final designations.

    Background

    We propose to designate critical habitat for the Gulf of Maine, New York Bight, Chesapeake Bay, Carolina, and South Atlantic Distinct Population Segments (DPSs) of Atlantic sturgeon (Acipenser oxyrinchus oxyrinchus). The specific areas proposed for designation include approximately 244 kilometers (152 miles) of aquatic habitat for the Gulf of Maine DPS, 547 kilometers (340 miles) of aquatic habitat for the New York Bight DPS, and 729 kilometers (453 miles) of aquatic habitat for the Chesapeake Bay DPS. Our proposed determinations for the Gulf of Maine, New York Bight, and Chesapeake Bay DPSs are described in the document identified by NOAA-NMFS-2015-0107. We also propose to designate approximately 1,997 kilometers (1,241 miles) of occupied aquatic habitat and 383 kilometers (238 miles) of unoccupied aquatic habitat for the Carolina DPS, and approximately 2,911 kilometers (1,809 miles) of occupied aquatic habitat and 33 kilometers (21 miles) of unoccupied aquatic habitat for the South Atlantic DPS. Our proposed determinations for the Carolina and South Atlantic DPSs are described in the document identified by NOAA-NMFS-2015-0157. We do not propose to exclude any particular areas from the proposed critical habitat designations.

    Authority:

    16 U.S.C. 1533.

    Dated: September 26, 2016. Samuel D Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2016-23530 Filed 9-28-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 160815740-6740-01] RIN 0648-BG28 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Shrimp Fishery of the Gulf of Mexico; Revision of Bycatch Reduction Device Testing Manual AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Proposed rule; request for comments.

    SUMMARY:

    In accordance with the framework procedure for adjusting management measures of the Fishery Management Plan for the Shrimp Fishery of the Gulf of Mexico (Gulf FMP), NMFS proposes to make administrative revisions to the Bycatch Reduction Device Testing Manual (BRD Manual). The BRD Manual contains procedures for the testing and certification of BRDs for use in shrimp trawls in the exclusive economic zone (EEZ) in the Gulf of Mexico (Gulf) and South Atlantic. The proposed changes to the BRD Manual remove outdated or obsolete data collection forms currently appended to the BRD Manual and revise the text to make several procedural steps outlined in the BRD Manual clearer and easier to understand. The intended effect of these revisions is to increase understanding of the BRD certification protocols.

    DATES:

    Comments must be received by October 14, 2016.

    ADDRESSES:

    You may submit comments on the proposed rule, identified by NOAA-NMFS-2016-0109, by either of the following methods:

    Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2016-0109, click the “Comment Now!” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to Susan Gerhart, NMFS Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701.

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Requests for copies of the BRD Manual should be sent to the NMFS Southeast Regional Office, 263 13th Avenue South, St. Petersburg, FL 33701.

    FOR FURTHER INFORMATION CONTACT:

    Susan Gerhart, NMFS Southeast Regional Office, telephone: 727-824-5305, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The shrimp fishery in the Gulf EEZ is managed under the Gulf FMP. The Gulf FMP was prepared by the Gulf of Mexico Fishery Management Council (Gulf Council) and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

    The shrimp fishery in the South Atlantic EEZ is managed under the FMP for the Shrimp Fishery of the South Atlantic Region (South Atlantic FMP). The South Atlantic FMP was prepared by the South Atlantic Fishery Management Council (South Atlantic Council) and is implemented by NMFS under the authority of the Magnuson-Stevens Act by regulations at 50 CFR part 622.

    Initially, the South Atlantic and Gulf Councils developed separate amendments to their respective FMPs to require the use of certified BRDs, and the South Atlantic Council developed their own BRD Manual, in cooperation with NMFS. The South Atlantic Council established these requirements through Amendment 2 to the South Atlantic FMP in 1997 (62 FR 18536, April 16, 1997). Subsequently, the Gulf Council required, with limited exceptions, the use of certified BRDs through Amendment 9 to the Gulf FMP (63 FR 18139, April 14, 1998). Amendment 9 specified that NMFS would develop a testing protocol for examining the bycatch reduction performance of additional BRD designs. Regulations implementing this initial testing protocol were effective July 13, 1999 (64 FR 37690, July 13, 1999), except for a collection-of-information requirement, which became effective September 29, 1999 (64 FR 52427, September 29, 1999). In 2005, in Amendment 6 to the South Atlantic FMP, the South Atlantic Council transferred authority to NMFS to maintain and revise the BRD Manual, and established a certification criterion identical to the Gulf Council's eastern Gulf criterion (70 FR 73383, December 12, 2005). In 2008, NMFS combined the separate BRD Manuals, and established a single procedural process for testing BRDs, and a single BRD certification criterion for both the Gulf and South Atlantic (73 FR 8219, February 13, 2008). The proposed administrative changes would not change the existing BRD certification criterion.

    When the two BRD Manuals were initially developed, no mandatory observer programs existed for Gulf and South Atlantic Council-managed species, thus there was no officially established set of data collection forms. To provide BRD testing applicants with a standardized reporting method, forms and instructions developed and used by NMFS and other researchers during a 1990s Congressionally-mandated Shrimp Trawl Bycatch Research Program were provided with the BRD Manual as Appendices A-I. This family of forms was officially submitted for review and approval under the Paperwork Reduction Act and assigned a control number by the Office of Management and Budget (OMB), OMB-0648-0345. Subsequently, mandatory observer programs were established by NMFS for the reef fish fishery and the shrimp fishery in the Gulf, and the various fisheries managed by NMFS' Highly Migratory Species Division. NMFS established a package of observer data collection forms to cover all of these programs with an assigned control number of OMB-0648-0593, and incorporated the family of forms in a standardized Observer Training Manual, including the BRD testing and certification family of forms.

    Over time, the various data collection forms used by NMFS have been revised or discarded, making many of the forms in the BRD testing family of forms obsolete (OMB-0648-0345). Currently, only three of the eight original BRD testing data forms in the Observer Training Manual are specific to BRD testing. NMFS intends to incorporate those forms into the OMB-0648-0593 family of forms, and has already discontinued the OMB-0648-0345 family of forms. Therefore, the forms need to be removed as appendices to the BRD Manual and text revised within the BRD Manual to remove references to those forms.

    NMFS has also revised some text and instructions in the BRD Manual to make the manual clearer and easier to understand. For example, where forms were referenced, the instructions only stated that “The applicant should submit a completed application form (Appendix A)”; given this action would remove that form from the BRD Manual, the instructions have been revised to reflect the information that the applicant must submit. Other revisions to the BRD Manual include increased consistency of terms; for example, “test” and “trawl” were used interchangeably, as were “trawl” and “net.”

    These proposed changes to the BRD Manual were presented to the Gulf and South Atlantic Councils for their consideration and no substantive comments were received from either Council regarding these administrative changes.

    These proposed changes to management measures would not add to or change any existing Federal regulations. Therefore, no codified text is associated with these proposed changes to management measures.

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Gulf and South Atlantic FMPs, other provisions of the Magnuson-Stevens Act, and other applicable laws, subject to further consideration after public comment.

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

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed change to management measures, if implemented, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is as follows:

    The purpose of this proposed rule is to make non-regulatory administrative revisions to the BRD Manual to simplify test reporting procedures and make the procedural steps outlined in the BRD Manual clearer and easier to understand. The Magnuson-Stevens Act provides the statutory basis for this proposed rule.

    This proposed rule, if implemented, would directly affect entities that apply for and participate in BRD testing. The primary entities expected to apply for the BRD testing are state government, academic, and not-for-profit entities. Independent commercial shrimping businesses in either the Gulf or South Atlantic may also be included among applicants. NMFS has not identified any other small entities that would be expected to be directly affected by this proposed change to management measures.

    The SBA defines a small organization as any not-for-profit enterprise that is independently owned and operated and not dominant in its field of operation. This definition includes private educational institutions. The SBA also defines a small governmental jurisdiction as the government of cities, counties, towns, townships, villages, school districts, or special districts with a population less than 50,000. For Regulatory Flexibility Act purposes only, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (see 50 CFR 200.2). A business primarily engaged in commercial fishing (NAICS code 11411) is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $11 million for all its affiliated operations worldwide.

    Over the period 2011-2015, a total of 5 separate entities applied for BRD testing. These entities were NMFS, the Gulf and South Atlantic Fisheries Foundation (Foundation), the University of Mississippi, Texas A&M University, and one commercial shrimp fisherman. Individual applications are required for each BRD tested and a total of 26 applications were submitted by these 5 entities over this period. The most applications in any year during this period was 10 (2011), submitted by 3 applicants, and the fewest applications was 1 (2015). NMFS submitted the most applications, 10, followed by the Foundation with 9. The University of Mississippi submitted three applications, and both Texas A&M University (2013) and the commercial shrimp fisherman (2015) submitted a single application.

    In addition to these entities, previous applicants have included the Texas Parks and Wildlife Department, the Florida Department of Environmental Protection, and the University of Georgia. The respective state agencies are extensions of their state governments and, as such, exceed the SBA population thresholds for small government entities. Similarly, the public academic institutions are extensions of the respective state government educational systems and, therefore, are similarly classified as large entities. Although no private colleges or universities have applied for BRD testing, these institutions are generally understood to be smaller than public institutions in terms of student population, staff, and operational budgets. As a result, any private educational institutions that might apply for BRD testing would be expected to be a small entity. Any commercial shrimp fisherman that might apply for BRD testing would do so from the perspective of research and not commercial fishing. However, as a commercial shrimp fisherman, this entity would be expected to primarily engage in commercial fishing and not research. Thus, for these entities, the commercial fishing revenue threshold would apply. From 2011 through 2013, the greatest average annual revenue for a single commercial shrimp fishing business in the Gulf was approximately $2.48 million. More recent information is not available, nor is similar information available on commercial shrimp fishermen in the South Atlantic. Nevertheless, because of the low maximum revenue total in the Gulf, it is assumed that any commercial shrimp fisherman that would apply for BRD testing would be a small business entity. In summary, this proposed change to management measures would be expected to directly affect a few small entities, such as not-for-profit institutions, commercial shrimp businesses, and private colleges or universities.

    The proposed revisions to the BRD Manual would not directly affect fishery participation, harvest, or the business operation of any small entity. As discussed in the Summary and Supplementary Information sections of this proposed change to management measures, the proposed changes are administrative in nature. This proposed change to management measures would only eliminate test reporting forms in the BRD Manual that are either obsolete or available elsewhere (NMFS standardized Observer Training Manual), revise text and instructions that reference these forms, list the information needed to be reported for BRD testing instead of the specific forms, and improve the consistency of terms used in the BRD Manual. These proposed changes are purely administrative. They would not be expected to affect actual BRD testing or the costs associated with such, but would be expected to improve understanding of the testing process and requirements, and facilitate better circumstances under which BRD research and gear development may proceed. Although subsequent BRD testing could result in future changes in allowable BRDs, the use of which could have direct economic consequences, these would be indirect effects of this proposed rule and outside the scope of the Regulatory Flexibility Act.

    Based on the discussion above, NMFS determines that this proposed change to management measures, if implemented, would not have a significant adverse economic effect on a substantial number of small entities. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

    The BRD Manual published as an appendix to a final rule published in the Federal Register on February 13, 2008 (73 FR 8219, February 13, 2008), is revised to read as follows.

    Note:

    The following appendix will publish in the Federal Register but will not appear in the Code of Federal Regulations. See the contacts under ADDRESSES to obtain the complete BRD Manual.

    Appendix—Bycatch Reduction Device Testing Manual Definitions

    Bycatch reduction criterion is the standard by which a BRD candidate will be evaluated. To be certified for use by the shrimp fishery in the Exclusive Economic Zone (EEZ) off the southeastern United States (North Carolina through Texas), the BRD candidate must demonstrate a successful reduction of total finfish bycatch by at least 30 percent by weight.

    Bycatch reduction device (BRD) is any gear or trawl modification designed to allow finfish to escape from a shrimp trawl.

    BRD candidate is a bycatch reduction device to be tested for certification for use in the commercial shrimp fishery of southeastern United States.

    Certified BRD is a BRD that has been tested according to the procedure outlined herein and has been determined by the RA as having met the bycatch reduction criterion.

    Control trawl means a trawl that is not equipped with a BRD during a test.

    Experimental trawl means the trawl that is equipped with the BRD candidate during a test.

    Evaluation and oversight personnel means scientists, observers, and other technical personnel who, by reason of their occupation or scientific expertise or training, are approved by the RA as qualified to evaluate and review the application and testing process.

    Gear Test Authorization (GTA) means a document signed by the RA that specifically exempts a person/vessel from Federal regulations requiring the use of BRDs in Federal waters. This GTA must be issued prior to conducting any tests on BRD candidates in Federal waters.

    Net/side bias means when the net(s) being fished on one side of the vessel demonstrate a different catch rate (fishing efficiency) than the net(s) being fished on the other side of the vessel during paired-net tests.

    Observer means a person on the list maintained by the RA of individuals qualified to supervise and monitor a BRD certification test.

    Paired-net test means a tow during certification trials where a control net and an experimental net are fished simultaneously, and the catches and catch rates between the nets are compared.

    Provisional Certification Criterion means a secondary benchmark that would allow a BRD candidate to be used for a time-limited period in the southeastern shrimp fishery. To meet the criterion, the BRD candidate must demonstrate a successful reduction of total finfish bycatch by at least 25 percent by weight.

    Provisionally certified BRD means a BRD that has been tested according to the procedure outlined herein and has been determined by the RA as having met the provisional certification criterion. A BRD meeting the provisional certification criterion would be certified by the RA for a period of 2 years.

    Regional Administrator (RA) means the Southeast Regional Administrator, National Marine Fisheries Service.

    Required measurements refers to the quantification of gear characteristics such as the dimensions and configuration of the trawl, the BRD candidate, the doors, or the location of the BRD in relation to other parts of the trawl gear that are used to assess the performance of the BRD candidate.

    Sample size means the number of successful tows.

    Shrimp trawler means any vessel that is equipped with one or more trawl nets where the on-board or landed catch of shrimp is more than 1 percent, by weight, of all fish comprising its on-board or landed catch.

    Successful tow means that the control and experimental trawl were fished in accordance with the requirements set forth herein and the terms and conditions of the Letter of Authorization, and there is no indication problematic events occurred during the tow that would impact or influence the fishing efficiency (catch) of one or both nets.

    Tow time means the total time (hours and minutes) an individual trawl was fished (i.e., the time interval beginning when the winch is locked after deploying the net overboard, and ending when retrieval of the net is initiated).

    Trawl means a net and associated gear and rigging used to catch shrimp. The terms trawl and net are used interchangeably throughout this manual, although in most instances, “trawl” is used to reflect the entire fishing rig (e.g., doors, tickler chain, net, turtle excluder device, etc.), whereas a “net” is used to reflect a component of that fishing rig.

    Try net means a separate net pulled for brief periods by a shrimp trawler to test for shrimp concentrations or determine fishing conditions (e.g., presence of absence of bottom debris, jellyfish, bycatch, and seagrasses).

    Tuning a net means adjusting the trawl and its components to minimize or eliminate any net/side bias that exists between the two nets that will be used as the control and experimental trawls during the certification test.

    I. Introduction

    This Bycatch Reduction Device Testing Manual (BRD Manual) establishes a standardized process for evaluating whether bycatch reduction device (BRD) candidates meet the established bycatch reduction criterion. BRDs that meet the criterion can be certified for use in the EEZ by the southeastern shrimp fishery. Requirements for BRDs used in shrimp trawls in the Gulf of Mexico and South Atlantic can be found in 50 CFR part 622.

    The requirement to use BRDs in state waters varies by state. Persons wishing to conduct BRD candidate tests exclusively in state waters do not need to apply to the National Marine Fisheries Service (NOAA Fisheries) for authorization to conduct these tests but should contact the appropriate state officials for authorizations. However, for NOAA Fisheries to certify a BRD candidate for use in Federal waters, tests conducted in state waters must meet the criteria for the operations plan and data collection procedures established in this manual.

    II. BRD Candidate Tests A. Application

    Persons interested in evaluating the effectiveness of a BRD candidate to reduce finfish from a shrimp trawl must apply for, receive, and have on board the approved vessel(s) during the test, a Gear Test Authorization (GTA) from the NOAA Fisheries Southeast Regional Office Regional Administrator (RA). To receive a GTA, the applicant must submit the following documentation to the RA: (1) Name, address, and contact information of the applicant; (2) a list of vessels to be used during the sampling program, including the vessels' U.S. Coast Guard documentation numbers or state registration numbers; (3) name, address, and contact information of the vessel owners and/or vessel operators; (4) a brief statement of the purpose and goal of the activity for which the GTA is requested; (5) an operations plan (see Section C below) describing the scope, duration, dates, and location of the test, and methods that will be used to conduct the test; (6) an 8.5 inch x 11 inch (21.6 cm x 27.9 cm) diagram drawn to scale of the BRD candidate design; (7) an 8.5 inch x 11 inch (21.6 cm x 27.9 cm) diagram drawn to scale of the BRD in the shrimp trawl; and (8) a description of the mechanism by which the BRD candidate is expected to exclude finfish.

    An applicant requesting an GTA to test an unapproved turtle excluder device (TED) as a BRD (including modifications to a certified TED where the modifications would make the configuration of the TED illegal) must first apply for and obtain from the RA an experimental TED authorization pursuant to 50 CFR 223.207(e)(2). Applicants should contact the Protected Resources Division of NOAA Fisheries Southeast Regional Office for further information. The GTA applicant must include a copy of that authorization with the application.

    Incomplete applications will be returned to the applicant along with a letter from the RA indicating what actions the applicant may take to make the application complete.

    There is no cost to the applicant for the RA's administrative expenses such as reviewing applications, issuing GTA, evaluating test results, or certifying BRDs. However, all other costs associated with the actual testing activities are the responsibility of the applicant, or any associated sponsor.

    If an application for a GTA is denied, the RA will provide a letter of explanation to the applicant, together with relevant recommendations to address the deficiencies that resulted in the denial.

    B. Allowable Activities

    Issuance of a GTA to test a BRD candidate in the South Atlantic or Gulf of Mexico allows the applicant to remove or disable the existing certified BRD in one outboard net (to create a control net), and to place the BRD candidate in another outboard net in lieu of a certified BRD (to create an experimental net). All other trawls under tow during the test must have a certified BRD, unless these nets are specifically exempted in the GTA. All nets under tow during the test must have an approved TED unless operating under an authorization issued pursuant to 50 CFR 223.207(e)(2), whereby the test is being conducted on an experimental TED. The GTA, and experimental TED authorization if applicable, must be on board the vessel(s) while the test is being conducted. The term of the GTA will be 60 days; should circumstances require a longer test period, the applicant may request a 60-day extension.

    C. Operations Plan

    An operations plan should be submitted with the application describing a method to compare the catches of shrimp and fish in a control net (net without a BRD candidate installed) to the catches of the same species in an experimental net (a net configured identically to the control net but also equipped with the BRD candidate).

    The applicant may choose to conduct a pre-certification test of a prototype BRD candidate. A pre-certification test would be conducted when the intent is to assess the preliminary effectiveness of a prototype BRD candidate under field conditions, and to make modifications to the prototype BRD candidate during the field test. For pre-certification testing, the operations plan must include only a description of the scope, duration, dates, and location of the test, along with a description of methods that will be used to conduct the test. No observer is required for a pre-certification test, but the applicant may choose to use an observer to maintain a written record of the test. The applicant will maintain a written record for both the control and experimental net during each tow. Mandatory data collection is limited to the weight of the shrimp catch and the weight of the total finfish catch in each test net during each tow. Although not required, the applicant may wish to incorporate some or all the certification test requirements listed below.

    For a BRD candidate to be considered for certification, the operations plan must be more detailed and address the following topics:

    • The primary assumption in assessing the bycatch reduction effectiveness of a BRD candidate during paired net tests is that the inclusion of the BRD candidate in the experimental net is the only factor causing a difference in catch from the control net. Therefore, the nets to be used in the tests must be calibrated (tuned) to minimize, to the extent practicable, any net/side bias in catch efficiency prior to beginning a test series, and tuned again after any gear modification or change. Additional information on tuning shrimp trawls to minimize bias is available from NOAA Fisheries, Harvesting Technology Branch, Mississippi Laboratories, Pascagoula Facility, 3209 Frederic Street, Pascagoula, MS 39567; phone 601-762-4591.

    • A standard tow time for a proposed evaluation should be defined. Tow times must be representative of the tow times used by commercial shrimp trawlers. The applicant should indicate what alternatives will be considered should the proposed tow time need adjustment once the test begins.

    • A minimum sample size of 30 successful tows using a specific BRD candidate design is required for the statistical analysis described in Section F. No alterations of the BRD candidate design are allowed during a specific test series. If the BRD candidate design is altered, a new test series must be started. If a gear change (i.e., changing nets, doors, or rigging) is required, the nets should be tuned again before proceeding with further tests to complete the 30-tow series. Minor repairs to the gear (e.g., sewing holes in the webbing; replacing a broken tickler chain with a new one of the same configuration) are not considered a “gear change.”

    • For tests conducted on twin-rig vessels (one net on the port side and one net on the starboard side), biases that might result from the use of a try net should be minimized. Total fishing times for a try net must be a consistent percentage of the total tow time during each tow made in the test.

    • To incorporate any potential net/side bias that remains after the tuning tows (e.g., the effect of a try net), or to accommodate for bias that develops between the control and experimental nets during the test, the operations plan should outline a timetable ensuring that an equal number of successful tows are made with the BRD candidate employed in both the port and starboard nets.

    • Mandatory data to be collected during a test includes: (1) Detailed vessel and gear specifications and (2) pertinent information concerning the location, duration, and catch from individual tows as set forth in forms available from the Science and Research Director (SRD) of the Southeast Fisheries Science Center. Applicants should contact the NOAA Fisheries, Galveston Laboratory, 4700 Avenue U, Galveston, TX 77551; phone 409-766-3500.

    • Following each paired tow, the catches from the control and experimental nets must be examined separately. This requires that the catch from each net be kept separate from each other, as well as from the catch taken in other nets fished during that tow. Mandatory data collections include recording the weight of the total catch of each test net (control and experimental nets), and the weight of the total shrimp catch (i.e., brown, white, pink, rock, or other shrimp by species) in each test net.

    • To determine the total finfish catch in each test net, two procedures may be used under different conditions. If the total catch in a net does not fill one standard 1-bushel (ca. 10 gal or 30 L) polyethylene shrimp basket (ca. 70 lb [31.8 kg] of catch), but the tow is otherwise considered successful, data must be collected on the entire catch of the net, and recorded as a “select” sample, indicating that the values represent the total catch of the particular net. If the catch in a net exceeds 70 lb (31.8 kg), a well-mixed sample consisting of one standard 1-bushel [ca. 10 gal] (30 L) polyethylene shrimp basket must be taken from the total catch of the net. The total weight of the sample must be recorded, as well as the weight (and number as applicable) of finfish in aggregate.

    • The forms available from the SRD include record keeping opportunities for additional species; collection of this information is optional for certification evaluation purposes. However, applicants testing BRD candidates are encouraged to collect additional information that may be pertinent to addressing bycatch issues in their respective regions. For example, in the western Gulf of Mexico applicants are especially encouraged to collect information on the bycatch of juvenile red snapper. Such data collection would follow the same procedure as sampling the total finfish catch.

    The operations plan should address what the applicant will do should it become necessary to deviate from the primary procedures outlined in the operations plan. The plan should describe in detail what will be done to continue the test in a reasonable manner that is consistent with the primary procedures. For example, it may become necessary to alter the pre-selected tow time to adapt to local fishing conditions to successfully complete the test. Prior to issuing a GTA, the RA may consult with evaluation personnel to review the acceptability of these proposed alterations.

    D. Observer Requirement

    It is the responsibility of the applicant to ensure that a qualified observer is on board the vessel during the certification tests. Observers may include employees or individuals acting on behalf of NOAA Fisheries, state fishery management agencies, universities, or private industry. Any change in information or testing circumstances, such as replacement of the observer, must be reported to the RA within 30 days. Under 50 CFR 600.746, when any fishing vessel is required to carry an observer as part of a mandatory observer program under the Magnuson Stevens Fishery Conservation and Management Act (16 U.S.C. 1801, et seq.), the owner or operator of the vessel must comply with guidelines, regulations, and conditions to ensure their vessel is adequate and safe to carry an observer, and to allow normal observer functions to collect information as described in this Manual. A vessel owner is deemed to meet this requirement if the vessel displays one of the following: (1) A current Commercial Fishing Vessel Safety Examination decal, issued within the last 2 years, that certifies compliance with regulations found in 33 CFR, chapter I, and 46 CFR, chapter I; (2) a certificate of compliance issued pursuant to 46 CFR 28.710; or (3) a valid certificate of inspection pursuant to 46 U.S.C. 3311. The observer has the right to check for major safety items, and if those items are absent or unserviceable, the observer may choose not to sail with the vessel until those deficiencies are corrected.

    E. Reports

    A report on the BRD candidate test results must be submitted by the applicant or associated sponsor before the RA will consider the BRD for certification. The report must contain a comprehensive description of the test, copies of all completed data forms used during the test, and photographs, drawings, and similar material describing the BRD. The report must include a description and explanation of any unanticipated deviations from the operations plan that occurred during the test. These deviations must be described in sufficient detail to allow evaluation and oversight personnel selected by NOAA Fisheries to determine if the tests were continued in a reasonable manner consistent with the approved operations plan procedures. Applicants must provide information on the cost of materials, labor, and installation of the BRD candidate. In addition, any unique or special circumstances of the tests, such as special operational characteristics or fishing techniques, which enhance the BRD's performance, should be described and documented as appropriate.

    F. Certification

    The RA will determine whether the required reports and supporting materials are sufficient to evaluate the BRD candidate's effectiveness. The determination of sufficiency would be based on whether the applicant adhered to the prescribed testing procedure or provided adequate justification for any deviations from the procedure during the test. If the RA determines that the data are sufficient for evaluation, the BRD candidate will be evaluated to determine if it meets the bycatch reduction criterion. In making a decision, the RA may consult with evaluation and oversight personnel. Based on the data submitted for review, the RA will determine the effectiveness of the BRD candidate, using appropriate statistical procedures such as Bayesian analyses, to determine if the BRD candidate meets the following conditions:

    (1) There is at least a 50-percent probability that the true reduction rate of the BRD candidate meets the bycatch reduction criterion (i.e., the BRD candidate demonstrates a best point estimate [sample mean] that meets the certification criterion); and

    (2) There is no more than a 10-percent probability that the true reduction rate of the BRD candidate is more than 5 percentage points less than the bycatch reduction criterion.

    To be certified for use in the fishery, the BRD candidate will have to satisfy both conditions. The first condition ensures that the observed reduction rate of the BRD candidate has an acceptable level of certainty that it meets the bycatch reduction criterion. The second condition ensures the BRD candidate demonstrates a reasonable degree of certainty the observed reduction rate represents the true reduction rate of the BRD candidate. This determination ensures the operational use of the BRD candidate in the shrimp fishery will, on average, provide a level of bycatch reduction that meets the established bycatch reduction criterion. Interested parties may obtain details regarding the hypothesis testing procedure to be used by contacting NOAA Fisheries, Harvesting Technology Branch, Mississippi Laboratories, Pascagoula Facility, 3209 Frederic Street, Pascagoula, MS 39567; phone 228-762-4591. Following a favorable determination of the certification analysis, the RA will certify the BRD (with any appropriate conditions as indicated by test results) and publish the notice of certification in the Federal Register.

    In addition, based on the data provided, if the BRD candidate does not meet the bycatch reduction certification criterion in accordance with the conditions outlined above, the RA may provisionally certify a BRD candidate based on the following condition:

    There is at least a 50-percent probability that the true reduction rate of the BRD candidate is no more than 5 percentage points less than the bycatch reduction criterion (i.e., the BRD candidate demonstrates a best point estimate [sample mean] within 5 percentage points of the certification criterion).

    A provisional certification will be effective for 2 years from the date of publication of a notice in the Federal Register announcing this provisional certification. This time period will allow additional wide-scale industry evaluation of the BRD candidate, during which additional effort would be made to improve the efficiency of the BRD to meet the certification criterion.

    III. BRDs Not Certified and Resubmission Procedures

    The RA will advise the applicant, in writing, if a BRD is not certified. This notification will explain why the BRD was not certified and what the applicant may do to either modify the BRD or the testing procedures to improve the chances of having the BRD certified in the future. If certification was denied because of insufficient information, the RA will explain what information is lacking. The applicant must provide the additional information within 60 days from receipt of such notification. If the RA subsequently certifies the BRD, the RA will announce the certification in the Federal Register.

    IV. Decertification of BRDs

    The RA will decertify a BRD whenever NOAA Fisheries determines a BRD no longer satisfies the bycatch reduction criterion. Before determining whether to decertify a BRD, the RA will notify the appropriate Fishery Management Council(s) in writing, and the public will be provided an opportunity to comment on any proposed decertification through a publication of a proposed rule in the Federal Register with a comment period of not less than 15 days. The RA will consider any comments from the affected Council(s) and public, and if the RA elects to proceed with decertification of the BRD, the RA will publish a final rule in the Federal Register, which would remove the BRD from the certified list of BRDs.

    V. Interactions With Sea Turtles

    The following section is provided for informational purposes. Sea turtles are listed under the Endangered Species Act as either endangered or threatened. The following procedures apply to incidental take of sea turtles under 50 CFR 223.206(d)(1):

    Any sea turtles taken incidentally during the course of fishing or scientific research activities must be handled with due care to prevent injury to live specimens, observed for activity, and returned to the water according to the following procedures:

    (A) Sea turtles that are actively moving or determined to be dead (as described in paragraph (B)(4) below) must be released over the stern of the boat. In addition, they must be released only when fishing or scientific collection gear is not in use, when the engine gears are in neutral position, and in areas where they are unlikely to be recaptured or injured by vessels.

    (B) Resuscitation must be attempted on sea turtles that are comatose or inactive by:

    (1) Placing the turtle on its bottom shell (plastron) so that the turtle is right side up and elevating its hindquarters at least 6 inches (15.2 cm) for a period of 4 to 24 hours. The amount of elevation depends on the size of the turtle; greater elevations are needed for larger turtles. Periodically, rock the turtle gently left to right and right to left by holding the outer edge of the shell (carapace) and lifting one side about 3 inches (7.6 cm) then alternate to the other side. Gently touch the eye and pinch the tail (reflex test) periodically to see if there is a response.

    (2) Sea turtles being resuscitated must be shaded and kept damp or moist but under no circumstance be placed into a container holding water. A water-soaked towel placed over the head, carapace, and flippers is the most effective method in keeping a turtle moist.

    (3) Sea turtles that revive and become active must be released over the stern of the boat only when fishing or scientific collection gear is not in use, when the engine gears are in neutral position, and in areas where they are unlikely to be recaptured or injured by vessels. Sea turtles that fail to respond to the reflex test or fail to move within 4 hours (up to 24, if possible) must be returned to the water in the same manner as that for actively moving turtles.

    (4) A turtle is determined to be dead if the muscles are stiff (rigor mortis) and/or the flesh has begun to rot; otherwise, the turtle is determined to be comatose or inactive and resuscitation attempts are necessary.

    Any sea turtle so taken must not be consumed, sold, landed, offloaded, transshipped, or kept below deck.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: September 19, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2016-23600 Filed 9-28-16; 8:45 am] BILLING CODE 3510-22-P
    81 189 Thursday, September 29, 2016 Notices AGENCY FOR INTERNATIONAL DEVELOPMENT Board for International Food and Agricultural Development; Notice of Meeting

    Pursuant to the Federal Advisory Committee Act, notice is hereby given of the public meeting of the Board for International Food and Agricultural Development (BIFAD). The meeting will be held from 8:00 a.m. to 12:00 p.m. CDT on Wednesday, October 12, 2016, at the Salon D, Des Moines Marriott Hotel, 700 Grand Avenue, Des Moines, IA 50309. The meeting will be streamed live on the Internet. The link to the global live stream is on BIFAD's home page: http://www.usaid.gov/bifad.

    The central theme of this public meeting will be Metrics for Accountability: Tracking Progress and Identifying Gaps in Development Investments. Dr. Brady Deaton, BIFAD Chair, will preside over the public business meeting, which will begin promptly at 8:00 a.m. CDT with opening remarks. At this meeting, the Board will address old and new business and hear updates from USAID and the university community. The purpose of the session is to examine results frameworks, assumptions, evidence, and M&E systems as a basis for tracking progress and learning, and adjusting investments towards achieving the 2030 development goals.

    Starting at 8:45 a.m., Beth Dunford, Deputy Coordinator for Development for Feed the Future and Assistant to the Administrator, USAID Bureau for Food Security, will provide an update on Feed the Future and the recently released report, A Food-Secure 2030. Then Emily Hogue, Team Lead for Monitoring Evaluation and Learning Team Lead, USAID Bureau for Food Security will present on the Feed the Future accountability framework, progress, and learning.

    The panel respondents will begin, following a short break, at 10:30 a.m. CDT. Presenters on this panel are Pietro Gennari, Director, Statistics Division, UN Food and Agriculture Organization, Richard Caldwell, Senior Program Officer, Monitoring Learning and Evaluation, Bill and Melinda Gates Foundation, Paul Winters, Director of the Research and Impact Assessment Division, International Fund for Agricultural Development, and David Ameyaw, Director, Monitoring and Evaluation, Alliance for a Green Revolution in Africa.

    At 11:30 a.m. CDT, Chairman Deaton will moderate a half-hour public comment period. At 12:00 p.m., Dr. Deaton will make closing remarks and adjourn the public meeting.

    Those wishing to attend the meeting or obtain additional information about BIFAD should contact Clara Cohen, Designated Federal Officer for BIFAD in the Bureau for Food Security at USAID. Interested persons may write to her in care of the U.S. Agency for International Development, Ronald Reagan Building, Bureau for Food Security, 1300 Pennsylvania Avenue NW., Washington, DC 20523-2110 or telephone her at (202) 712-0119.

    Karen Duca, Senior Policy Advisor, Division for Human and Institutional Capacity Developmentm (HICD)-BIFAD, Office of Agricultural Research and Policy, Bureau for Food Security.
    [FR Doc. 2016-23648 Filed 9-27-16; 4:15 pm] BILLING CODE P
    DEPARTMENT OF AGRICULTURE Agricultural Research Service Notice of Intent To Grant Exclusive License AGENCY:

    Agricultural Research Service, USDA.

    ACTION:

    Notice of intent.

    SUMMARY:

    Notice is hereby given that the U.S. Department of Agriculture, Agricultural Research Service, intends to grant to TREASURE8 LLC of SAN FRANCISCO, CALIFORNIA, an exclusive license to U.S. Patent Application Serial No. 14/244,448, entitled “NOVEL INFRARED DRY BLANCHING, INFRARED BLANCHING, AND INFRARED DRYING TECHNOLOGIES FOR FOOD PROCESSING,” filed on April 3, 2014.

    DATES:

    Comments must be received on or before October 31, 2016.

    ADDRESSES:

    Send comments to: USDA, ARS, Office of Technology Transfer, 5601 Sunnyside Avenue, Rm. 4-1174, Beltsville, Maryland 20705-5131.

    FOR FURTHER INFORMATION CONTACT:

    Mojdeh Bahar of the Office of Technology Transfer at the Beltsville address given above; telephone: 301-504-5989.

    SUPPLEMENTARY INFORMATION:

    The Federal Government's patent rights in THIS INVENTION are assigned to the United States of America, as represented by the Secretary of Agriculture. It is in the public interest to so license THIS INVENTION as TREASURE8 LLC of SAN FRANCISCO, CALIFORNIA, has submitted a complete and sufficient application for a license. The prospective exclusive license will be royalty-bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless, within thirty (30) days from the date of this published Notice, the Agricultural Research Service receives written evidence and argument which establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.

    Mojdeh Bahar, Assistant Administrator.
    [FR Doc. 2016-23534 Filed 9-28-16; 8:45 am] BILLING CODE 3410-03-P
    DEPARTMENT OF AGRICULTURE Forest Service Gallatin Resource Advisory Committee AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Gallatin Resource Advisory Com