Federal Register Vol. 81, No.190,

Federal Register Volume 81, Issue 190 (September 30, 2016)

Page Range67091-67899
FR Document

81_FR_190
Current View
Page and SubjectPDF
81 FR 67331 - Sunshine Act MeetingsPDF
81 FR 67354 - Announcing the Domestic Violence Awareness Month YouTube Challenge; CFDA Number: 93.592PDF
81 FR 67215 - Fisheries of the Exclusive Economic Zone Off Alaska; Big Skate in the Central Regulatory Area of the Gulf of AlaskaPDF
81 FR 67366 - Filing Procedures for Employment Authorization and Automatic Extension of Existing Employment Authorization Documents for Liberians Eligible for Deferred Enforced DeparturePDF
81 FR 67377 - Notice of Amended Proposed Withdrawal and Notice of Public Meetings; OregonPDF
81 FR 67158 - Regulatory Update of Transfer and Sanction ProgramsPDF
81 FR 67332 - Air University Board of Visitors' Air Force Institute of Technology Subcommittee Notice of MeetingPDF
81 FR 67414 - Charging Standard Administrative Fees for Non-Program Information Requests for Detailed Social Security EarningsPDF
81 FR 67098 - Airworthiness Directives; General Electric Company Turbofan EnginesPDF
81 FR 67414 - Charging Standard Administrative Fees for Non-Program InformationPDF
81 FR 67355 - Proposed Information Collection Activity; Comment RequestPDF
81 FR 67415 - E.O. 13224 Designation of Anas El Abboubi, aka Anas el-Abboubi, aka Anas al-Abboubi, aka Anas Al-Italy, aka Abu Rawaha the Italian, aka Abu the Italian, aka Rawaha al Itali, aka Mc Khalifh, aka McKhalif, aka Mc Khaliph, aka Anas Shakur, aka Anas Abdu Shakur as a Specially Designated Global TerroristPDF
81 FR 67332 - Submission for OMB Review; Comment RequestPDF
81 FR 67435 - Submission for OMB Review; Comment RequestPDF
81 FR 67295 - Fishing Capacity Reduction Program for the Pacific Coast Groundfish FisheryPDF
81 FR 67415 - Shipping Coordinating Committee; Notice of Public MeetingPDF
81 FR 67267 - Privacy Act Regulations; Exemption for the Investigations Case Management SystemPDF
81 FR 67386 - Privacy Act of 1974, as Amended; Notice of a New System of RecordsPDF
81 FR 67390 - Agency Information Collection Activities; Proposed Collection Comments Requested; Extension, Without Change, of a Currently Approved Collection; Bulletproof Vest Partnership (BVP)PDF
81 FR 67390 - Agency Information Collection Activities; Proposed eCollection eComments Requested; New Collection: Leadership Engagement SurveyPDF
81 FR 67348 - Environmental Impact Statements; Notice of AvailabilityPDF
81 FR 67431 - Sanctions Actions Pursuant to Executive Order 13224PDF
81 FR 67293 - Reorganization and Expansion of Foreign-Trade Zone 214 Under Alternative Site Framework; Lenoir County, North CarolinaPDF
81 FR 67296 - Gulf of Mexico Fishery Management Council; Public MeetingPDF
81 FR 67312 - New England Fishery Management Council; Public MeetingPDF
81 FR 67419 - Lehigh Railway, LLC-Lease Exemption Containing Interchange Commitment-Norfolk Southern Railway CompanyPDF
81 FR 67403 - New Postal ProductsPDF
81 FR 67362 - State Health Departments Coordinating Center of the Jurisdictional Approach To Curing Hepatitis C Among HIV/HCV Coinfected People of Color Demonstration Project Supported by the Secretary's Minority AIDS Initiative FundPDF
81 FR 67416 - New England Transrail, LLC, d/b/a Wilmington & Woburn Terminal Railway-Construction, Acquisition and Operation Exemption-in Wilmington and Woburn, Mass.PDF
81 FR 67312 - Pacific Island Fisheries; AquaculturePDF
81 FR 67170 - Drawbridge Operation Regulation; Newtown Creek, Brooklyn and Queens, NYPDF
81 FR 67261 - Air Plan Approval; Wisconsin; NOXPDF
81 FR 67402 - Advisory Committee on Reactor Safeguards (ACRS) Meeting of the ACRS Subcommittee On T-H Phenomena; Notice of MeetingPDF
81 FR 67349 - Board of Scientific Counselors (BOSC) Air, Climate, and Energy Subcommittee Meeting-October 2016PDF
81 FR 67372 - 30-Day Notice of Proposed Information Collection: Promise Zones ReportingPDF
81 FR 67373 - 30-Day Notice of Proposed Information Collection: Notice of Proposed Information Collection for License for the Use of Personally Identifiable Information Protected Under the Privacy Act of 1974PDF
81 FR 67287 - Fisheries Off West Coast States; Amendment 27 to the Pacific Coast Groundfish Fishery Management PlanPDF
81 FR 67371 - Agency Information Collection Activities: Petition for Nonimmigrant Worker, Form I-129; Extension, Without Change, of a Currently Approved CollectionPDF
81 FR 67343 - Commission Information Collection Activities (FERC Form Nos. 1, 1-F, and 3-Q); Comment RequestPDF
81 FR 67341 - WBI Energy Transmission, Inc.; Notice of Request Under Blanket AuthorizationPDF
81 FR 67342 - Northern Natural Gas Company; Notice of Schedule for Environmental Review of the Northern Lights 2017 Expansion ProjectPDF
81 FR 67346 - Southern Star Central Gas Pipeline, Inc.; Notice of Schedule for Environmental Review of the Shidler Line Abandonment ProjectPDF
81 FR 67340 - McMahan Hydroelectric, L.L.C.; Notice of Application Accepted for Filing and Soliciting Comments, Motions To Intervene and ProtestsPDF
81 FR 67342 - Wheeler, Brent E.; Notice of FilingPDF
81 FR 67345 - Southern Star Central Gas Pipeline, Inc.; Notice of Request Under Blanket AuthorizationPDF
81 FR 67333 - Board of Regents, Uniformed Services University of the Health Sciences; Notice of Federal Advisory Committee MeetingPDF
81 FR 67398 - Standards for Maintaining, Collecting, and Presenting Federal Data on Race and EthnicityPDF
81 FR 67153 - Food Additives Permitted in Feed and Drinking Water of Animals; Feed Grade Sodium FormatePDF
81 FR 67292 - National Advisory Committee; MeetingsPDF
81 FR 67217 - Hazelnuts Grown in Oregon and Washington; Hearing on Proposed Amendment of Marketing Order No. 982PDF
81 FR 67379 - Notice of 30 Day Comment Period for an Environmental Assessment on a Special Use Permit for a Wireless Telecommunication FacilityPDF
81 FR 67397 - Construction Fall Protection Systems Criteria and Practices, and Training Requirements; Extension of the Office of Management and Budget's (OMB) Approval of Information Collection (Paperwork) RequirementsPDF
81 FR 67293 - Cost Recovery Fee Schedule for the EU-U.S. Privacy Shield FrameworkPDF
81 FR 67097 - Special Conditions: Embraer S.A., Model ERJ 190-300 Series Airplanes; Electronic Flight Control System: Control Surface Position Awareness, Multiple Modes of OperationPDF
81 FR 67380 - Draft Programmatic Environmental Impact Statement for Geological and Geophysical Activities on the Gulf of Mexico Outer Continental Shelf (OCS) MMAA104000PDF
81 FR 67338 - Environmental Impact Statement for the Recapitalization of Infrastructure Supporting Naval Spent Nuclear Fuel Handling at the Idaho National LaboratoryPDF
81 FR 67337 - Application To Export Electric Energy; CWP EnergyPDF
81 FR 67295 - U.S. Integrated Ocean Observing System (IOOS®) Advisory CommitteePDF
81 FR 67219 - Energy Conservation Program: Energy Conservation Standards for Residential Conventional Cooking Products; Supplemental Notice of Proposed RulemakingPDF
81 FR 67337 - Agency Information Collection Activities; Comment Request; Targeted Teacher Shortage AreasPDF
81 FR 67401 - NASA Advisory Council; Science Committee; Heliophysics Subcommittee; MeetingPDF
81 FR 67425 - Qualification of Drivers; Exemption Applications; Diabetes MellitusPDF
81 FR 67422 - Qualification of Drivers; Exemption Applications; Epilepsy and Seizure DisordersPDF
81 FR 67421 - Qualification of Drivers; Exemption Applications; Diabetes MellitusPDF
81 FR 67424 - Denial of Exemption Applications; Epilepsy and Seizure DisordersPDF
81 FR 67289 - Payette National Forest, Idaho; Huckleberry Landscape Restoration ProjectPDF
81 FR 67334 - Notice of Availability and Notice of Public Meetings for the Draft Supplemental Environmental Impact Statement for Land Acquisition and Airspace Establishment To Support Large-Scale Marine Air Ground Task Force Live-Fire and Maneuver Training at the Marine Corps Air Ground Combat Center, Twentynine Palms, CaliforniaPDF
81 FR 67376 - Endangered and Threatened Wildlife and Plants; Availability of Proposed Low-Effect Habitat Conservation Plans, Clay, Lake, Marion, and Putnam County, FLPDF
81 FR 67260 - BASF Corp.; Filing of Food Additive Petition (Animal Use)PDF
81 FR 67402 - Advisory Committee for Social, Behavioral and Economic Sciences; Notice of MeetingPDF
81 FR 67402 - Advisory Committee for Biological Sciences; Notice of MeetingPDF
81 FR 67326 - Procurement List; DeletionsPDF
81 FR 67420 - Notice of Final Federal Agency Actions on Proposed Highway in CaliforniaPDF
81 FR 67377 - Postponement of Utah Resource Advisory Council MeetingPDF
81 FR 67394 - Proposed Collection, Comment RequestPDF
81 FR 67391 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Program Reporting and Performance Standards System for Indian and Native American Programs Under Title I, Section 166 of the Workforce Innovation and Opportunity ActPDF
81 FR 67327 - Procurement List; Proposed Addition and DeletionsPDF
81 FR 67333 - Submission for OMB Review; Comment RequestPDF
81 FR 67170 - Eighth Coast Guard District Annual Safety Zones; Pittsburgh Steelers Fireworks; Allegheny River Mile 0.0-0.25, Ohio River 0.0-0.1, Monongahela River 0.0-0.1PDF
81 FR 67154 - Medical Devices; Neurological Devices; Classification of the Evoked Photon Image Capture DevicePDF
81 FR 67430 - Northeast Corridor Safety Committee; Notice of MeetingPDF
81 FR 67239 - Amendments to the Capital Plan and Stress Test RulesPDF
81 FR 67353 - Submission for OMB Review; Comment RequestPDF
81 FR 67396 - Petitions for Modification of Application of Existing Mandatory Safety StandardsPDF
81 FR 67394 - Affirmative Decisions on Petitions for Modification Granted in Whole or in PartPDF
81 FR 67360 - Fee for Using a Rare Pediatric Disease Priority Review Voucher in Fiscal Year 2017PDF
81 FR 67356 - Fee for Using a Tropical Disease Priority Review Voucher in Fiscal Year 2017PDF
81 FR 67358 - Agency Information Collection Activities; Proposed Collection; Comment Request; Donor Risk Assessment Questionnaire for the Food and Drug Administration/National Heart, Lung, and Blood Institute-Sponsored Transfusion-Transmissible Infections Monitoring System-Risk Factor ElicitationPDF
81 FR 67331 - Privacy Act of 1974 System of Records NoticePDF
81 FR 67363 - Agency Information Collection Activities; Proposed Collection; Public Comment RequestPDF
81 FR 67404 - Product Change-First-Class Package Service Negotiated Service AgreementPDF
81 FR 67297 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to a Tidal Marsh Restoration ProjectPDF
81 FR 67327 - Privacy Act of 1974 System of Records NoticePDF
81 FR 67406 - Self-Regulatory Organizations; The Depository Trust Company; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 1, Regarding the Implementation of Functionality To Submit a Cover of Protect on Behalf of Another Participant and the Removal of the Option To Cover of Protect Directly With AgentPDF
81 FR 67379 - National Register of Historic Places; Notification of Pending Nominations and Related ActionsPDF
81 FR 67351 - Information Collections Being Reviewed by the Federal Communications CommissionPDF
81 FR 67392 - Child Labor, Forced Labor, and Forced or Indentured Child Labor in the Production of Goods in Foreign Countries and Efforts by Certain Foreign Countries To Eliminate the Worst Forms of Child LaborPDF
81 FR 67404 - SerenityShares Investments LLC, et al.; Notice of ApplicationPDF
81 FR 67412 - Self-Regulatory Organizations; National Stock Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Fee and Rebate Schedule To Create a Liquidity-Adding Volume Threshold To Benefit From the Current Liquidity Taking Fee in Securities Priced $1.00 or GreaterPDF
81 FR 67408 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to the Fees SchedulePDF
81 FR 67347 - Request for Public Comments To Be Sent to Versar, Inc., on an Interim List of Perchlorate in Drinking Water Expert Peer Reviewers and Draft Peer Review Charge QuestionsPDF
81 FR 67350 - Request for Public Comments To Be Sent to EPA on Peer Review Materials To Inform the Safe Drinking Water Act Decision Making on PerchloratePDF
81 FR 67364 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingPDF
81 FR 67364 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 67365 - Center for Scientific Review; Notice of Closed MeetingsPDF
81 FR 67313 - Taking of Marine Mammals Incidental to Specified Activities; Construction of the East Span of the San Francisco-Oakland Bay BridgePDF
81 FR 67171 - Air Plan Approval; Mississippi; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality StandardPDF
81 FR 67432 - Proposed Collection; Comment Request for Obligations of States and Political Subdivisions Statutory ElectionsPDF
81 FR 67291 - Advisory Committees ExpirationPDF
81 FR 67432 - Proposed Collection; Comment Request for Form 1363PDF
81 FR 67433 - Proposed Collection; Comment Request for Form 8703PDF
81 FR 67434 - Proposed Collection; Comment Request for Gasohol; Compressed Natural Gas and Gasoline Excise TaxPDF
81 FR 67433 - Proposed Collection: Comment Request for Regulation ProjectPDF
81 FR 67215 - Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 2016 Commercial Accountability Measures and Closure for South Atlantic Greater AmberjackPDF
81 FR 67140 - Notice of Arrival for Importations of Pesticides and Pesticidal DevicesPDF
81 FR 67156 - Passports: Service PassportsPDF
81 FR 67378 - Notice of Availability of the Draft Craters of the Moon National Monument and Preserve Plan Amendment and Environmental Impact Statement, IdahoPDF
81 FR 67093 - Special Conditions: DAHER-SOCATA, Model TBM 700; Inflatable Four-Point Restraint Safety Belt With an Integrated Airbag DevicePDF
81 FR 67118 - Adoption of Updated EDGAR Filer ManualPDF
81 FR 67374 - Federal Property Suitable as Facilities To Assist the HomelessPDF
81 FR 67193 - Endangered and Threatened Wildlife and Plants; Threatened Species Status for the Eastern Massasauga RattlesnakePDF
81 FR 67113 - Fisheries of the Exclusive Economic Zone Off Alaska; Observer Coverage Requirements for Bering Sea and Aleutian Islands Management Area Trawl Catcher VesselsPDF
81 FR 67381 - Notice of Availability for the Final Environmental Impact Statement for the Continued Implementation of the 2008 Operating Agreement for the Rio Grande Project, New Mexico and TexasPDF
81 FR 67091 - Oranges and Grapefruit Grown in Lower Rio Grande Valley in Texas; Relaxation of Container and Pack RequirementsPDF
81 FR 67093 - Acquisition Process: Task and Delivery Order Contracts, Bundling, ConsolidationPDF
81 FR 67393 - Notice of Publication of 2016 Update to the Department of Labor's List of Goods Produced by Child Labor or Forced LaborPDF
81 FR 67266 - Effluent Limitations Guidelines and Standards for the Oil and Gas Extraction Point Source Category-Implementation Date ExtensionPDF
81 FR 67191 - Effluent Limitations Guidelines and Standards for the Oil and Gas Extraction Point Source Category-Implementation Date ExtensionPDF
81 FR 67120 - Reliability Standard for Transmission System Planned Performance for Geomagnetic Disturbance EventsPDF
81 FR 67190 - Availability of Data on Allocations of Cross-State Air Pollution Rule Allowances to Existing Electricity Generating UnitsPDF
81 FR 67091 - Department of Labor Implementation of OMB Guidance on Nonprocurement Debarment and SuspensionPDF
81 FR 67217 - Department of Labor Implementation of OMB Guidance on Nonprocurement Debarment and Suspension; WithdrawalPDF
81 FR 67104 - Modification of Class E Airspace; Napa, CAPDF
81 FR 67110 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous AmendmentsPDF
81 FR 67112 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous AmendmentsPDF
81 FR 67107 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous AmendmentsPDF
81 FR 67105 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous AmendmentsPDF
81 FR 67093 - Small Business Government Contracting and National Defense Authorization Act of 2013 AmendmentsPDF
81 FR 67220 - Regulations Q and Y; Risk-Based Capital and Other Regulatory Requirements for Activities of Financial Holding Companies Related to Physical Commodities and Risk-Based Capital Requirements for Merchant Banking InvestmentsPDF
81 FR 67382 - Notice of Intent To Prepare the Columbia River System Operations Environmental Impact StatementPDF
81 FR 67102 - Airworthiness Directives; Bell Helicopter Textron Canada Limited (Bell) HelicoptersPDF
81 FR 67384 - Notice of Availability and Notice of Public Meetings for the Draft Environmental Impact Statement for the Navajo Generating Station-Kayenta Mine Complex Project, ArizonaPDF
81 FR 67186 - Air Plan Approval; Indiana; Temporary Alternate Opacity Limits for American Electric Power, RockportPDF
81 FR 67179 - Air Plan Approval; Florida; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality StandardPDF
81 FR 67100 - Airworthiness Directives; Honeywell International Inc. Turboprop and Turboshaft EnginesPDF
81 FR 67149 - New Animal Drugs; Approval of New Animal Drug Applications; Change of Sponsor's AddressPDF
81 FR 67144 - Rules Relating to the Submission and Consideration of Petitions for Duty Suspensions and ReductionsPDF
81 FR 67781 - Federal Acquisition Regulation; Federal Acquisition Circular 2005-91; Small Entity Compliance GuidePDF
81 FR 67781 - Federal Acquisition Regulation; Technical AmendmentsPDF
81 FR 67778 - Federal Acquisition Regulation: Limitation on Allowable Government Contractor Employee Compensation CostsPDF
81 FR 67776 - Federal Acquisition Regulation: Contractors Performing Private Security FunctionsPDF
81 FR 67774 - Federal Acquisition Regulation; New Designated Countries-Ukraine and MoldovaPDF
81 FR 67773 - Federal Acquisition Regulation; Amendment Relating to Multi-Year Contract Authority for Acquisition of PropertyPDF
81 FR 67763 - Federal Acquisition Regulation; Consolidation and BundlingPDF
81 FR 67736 - Federal Acquisition Regulation; Unique Identification of Entities Receiving Federal AwardsPDF
81 FR 67735 - Federal Acquisition Regulation; Sole Source Contracts for Women-Owned Small BusinessesPDF
81 FR 67732 - Federal Acquisition Regulation: Non-Retaliation for Disclosure of Compensation InformationPDF
81 FR 67731 - Federal Acquisition Regulation; Updating Federal Contractor Reporting of Veterans' EmploymentPDF
81 FR 67728 - Federal Acquisition Regulation; Prohibition on Contracting With Corporations With Delinquent Taxes or a Felony ConvictionPDF
81 FR 67726 - Federal Acquisition Regulation; Federal Acquisition Circular 2005-91; IntroductionPDF
81 FR 67326 - Notice of MeetingPDF
81 FR 67421 - Environmental Impact Statement; Hartford County, ConnecticutPDF
81 FR 67786 - Endangered and Threatened Wildlife and Plants; Endangered Status for 49 Species From the Hawaiian IslandsPDF
81 FR 67270 - Endangered and Threatened Wildlife and Plants; Endangered Species Status for the Kenk's AmphipodPDF
81 FR 67438 - Child Care and Development Fund (CCDF) ProgramPDF
81 FR 67598 - Establishing Paid Sick Leave for Federal ContractorsPDF
81 FR 67862 - Injurious Wildlife Species; Listing 10 Freshwater Fish and 1 CrayfishPDF
81 FR 67171 - Enterprise Payment System and Enterprise PO Boxes OnlinePDF
81 FR 67366 - Meeting of the Homeland Security Academic Advisory CouncilPDF

Issue

81 190 Friday, September 30, 2016 Contents Agricultural Marketing Agricultural Marketing Service RULES Container and Pack Requirements: Oranges and Grapefruit Grown in Lower Rio Grande Valley in Texas, 67091-67092 2016-23502 PROPOSED RULES Marketing Orders: Hazelnuts Grown in Oregon and Washington, 67217-67219 2016-23669 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Forest Service

AIRFORCE Air Force Department NOTICES Meetings; Sunshine Act Air University Board of Visitors' Air Force Institute of Technology Subcommittee, 67332 2016-23778 Army Army Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 67332 2016-23714 Bonneville Bonneville Power Administration NOTICES Environmental Impact Statements; Availability, etc.: Columbia River System Operations, 67382-67383 2016-23346 Safety Enviromental Enforcement Bureau of Safety and Environmental Enforcement PROPOSED RULES Privacy Act; Exemptions, 67267-67270 2016-23707 NOTICES Privacy Act; Systems of Records, 67386-67390 2016-23706 Census Bureau Census Bureau NOTICES Meetings: National Advisory Committee on Racial, Ethnic and Other Populations, 67292-67293 2016-23670 Children Children and Families Administration RULES Child Care and Development Fund Program, 67438-67595 2016-22986 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Study of Title IV-E Child Welfare Waiver Demonstrations, 67353-67354 2016-23628 Provision of Child Support Services in IV-D cases under the Hague Child Support Convention; Federally Approved Forms, 67355-67356 2016-23722 Domestic Violence Awareness Month YouTube Challenge, 67354-67355 2016-23853 Civil Rights Civil Rights Commission NOTICES Requests for Nominations Florida Advisory Committee; Texas Advisory Committee; Michigan Advisory Committee, 67291-67292 2016-23594 Coast Guard Coast Guard RULES Drawbridge Operations: Newtown Creek, Brooklyn and Queens, NY, 67170 2016-23690 Safety Zones: Pittsburgh Steelers Fireworks, 67170-67171 2016-23635 Commerce Commerce Department See

Census Bureau

See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Commission Fine Commission of Fine Arts NOTICES Meetings: Buildings, Parks and Memorials, 67326 2016-23120 Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 67326-67327 2016-23637 2016-23642 Commodity Futures Commodity Futures Trading Commission NOTICES Meetings; Sunshine Act, 67331-67332 2016-23886 Privacy Act; Systems of Records, 67327-67331 2016-23616 2016-23621 Defense Department Defense Department See

Air Force Department

See

Army Department

See

Engineers Corps

See

Navy Department

RULES Federal Acquisition Regulations: Amendment Relating to Multi-Year Contract Authority for Acquisition of Property, 67773-67774 2016-23201 Consolidation and Bundling, 67763-67773 2016-23199 Contractors Performing Private Security Functions, 67776-67778 2016-23203 Federal Acquisition Circular 2005-91; Small Entity Compliance Guide, 67781-67783 2016-23209 Federal Acquisition Circular 2005-91; Introduction, 67726-67728 2016-23193 Limitation on Allowable Government Contractor Employee Compensation Costs, 67778-67780 2016-23204 New Designated Countries—Ukraine and Moldova, 67774-67776 2016-23202 Non-Retaliation for Disclosure of Compensation Information, 67732-67735 2016-23196 Prohibition on Contracting with Corporations with Delinquent Taxes or a Felony Conviction, 67728-67731 2016-23194 Sole Source Contracts for Women-Owned Small Businesses, 67735-67736 2016-23197 Technical Amendments, 67781 2016-23205 Unique Identification of Entities Receiving Federal Awards, 67736-67763 2016-23198 Updating Federal Contractor Reporting of Veterans' Employment, 67731-67732 2016-23195 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 67333-67334 2016-23636 Meetings: Board of Regents, Uniformed Services University of the Health Sciences, 67333 2016-23674
Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Targeted Teacher Shortage Areas, 67337 2016-23658 Energy Department Energy Department See

Bonneville Power Administration

See

Federal Energy Regulatory Commission

PROPOSED RULES Energy Conservation Programs: Standards for Residential Conventional Cooking Products, 67219-67220 2016-23660 NOTICES Applications to Export Electric Energy: CWP Energy, 67337-67338 2016-23662 Environmental Impact Statements; Availability, etc.: Recapitalization of Infrastructure Supporting Naval Spent Nuclear Fuel Handling at the Idaho National Laboratory, 67338-67340 2016-23663
Engineers Engineers Corps NOTICES Environmental Impact Statements; Availability, etc.: Columbia River System Operations, 67382-67383 2016-23346 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Florida; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard, 67179-67185 2016-23292 Indiana; Temporary Alternate Opacity Limits for American Electric Power, Rockport, 67186-67190 2016-23296 Mississippi; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard, 67171-67179 2016-23598 Availability of Data on Allocations of Cross-State Air Pollution Rule Allowances to Existing Electricity Generating Units, 67190-67191 2016-23434 Effluent Limitations Guidelines and Standards for the Oil and Gas Extraction Point Source Category—Implementation Date Extension, 67191-67193 2016-23456 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Wisconsin; NOx as a Precursor to Ozone, PM2.5 Increment Rules and Prevention of Significant Deterioration Infrastructure Requirements, 67261-67266 2016-23689 Effluent Limitations Guidelines and Standards for the Oil and Gas Extraction Point Source Category—Implementation Date Extension, 67266-67267 2016-23458 NOTICES Environmental Impact Statements; Availability, 67348-67349 2016-23703 Meetings: Board of Scientific Counselors Air, Climate, and Energy Subcommittee, 67349-67350 2016-23687 Peer Review Materials to Inform the Safe Drinking Water Act Decision Making on Perchlorate, 67350-67351 2016-23606 Requests for Comments: Interim List of Perchlorate in Drinking Water Expert Peer Reviewers and Draft Peer Review Charge Questions, 67347-67348 2016-23607 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Bell Helicopter Textron Canada Limited (Bell) Helicopters, 67102-67104 2016-23345 General Electric Company Turbofan Engines, 67098-67100 2016-23740 Honeywell International Inc. Turboprop and Turboshaft Engines, 67100-67102 2016-23263 Modification of Class E Airspace: Napa, CA, 67104-67105 2016-23423 Special Conditions: DAHER-SOCATA, Model TBM 700; Inflatable Four-Point Restraint Safety Belt with an Integrated Airbag Device, 67093-67097 2016-23564 Embraer S.A., Model ERJ 190-300 Series Airplanes; Electronic Flight Control System: Control Surface Position Awareness, Multiple Modes of Operation, 67097-67098 2016-23665 Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments, 67105-67107, 67112-67113 2016-23406 2016-23411 Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments, 67107-67112 2016-23410 2016-23414 Federal Communications Federal Communications Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 67351-67353 2016-23613 Federal Energy Federal Energy Regulatory Commission RULES Reliability Standard for Transmission System Planned Performance for Geomagnetic Disturbance Events, 67120-67140 2016-23441 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 67343-67345 2016-23681 Filings: Wheeler, Brent E., 67342 2016-23676 Hydroelectric Applications: McMahan Hydroelectric, L.L.C., 67340-67341 2016-23677 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: WBI Energy Transmission, Inc., 67341 2016-23680 Requests under Blanket Authorizations: Southern Star Central Gas Pipeline, Inc., 67345-67346 2016-23675 Schedules for Environmental Review: Shidler Line Abandonment Project, 67346-67347 2016-23678 The Northern Lights 2017 Expansion Project, 67342 2016-23679 Federal Highway Federal Highway Administration RULES Regulatory Update of Transfer and Sanction Programs, 67158-67170 2016-23788 NOTICES Environmental Impact Statements; Availability, etc.: Interstate 84 Project, Hartford County, CT, 67421 2016-23119 Final Federal Agency Actions: Proposed Highway in California, 67420-67421 2016-23641 Federal Motor Federal Motor Carrier Safety Administration NOTICES Exemption Applications; Denials: Epilepsy and Seizure Disorders, 67424-67425 2016-23651 Qualification of Drivers; Exemption Applications: Diabetes Mellitus, 67421-67422, 67425-67430 2016-23652 2016-23656 Epilepsy and Seizure Disorders, 67422-67424 2016-23653 Federal Railroad Federal Railroad Administration NOTICES Meetings: Northeast Corridor Safety Committee, 67430-67431 2016-23630 Federal Reserve Federal Reserve System PROPOSED RULES Capital Plan and Stress Test, 67239-67260 2016-23629 Risk-Based Capital and Other Regulatory Requirements for Activities of Financial Holding Companies Related to Physical Commodities and Risk-Based Capital Requirements for Merchant Banking Investments, 67220-67239 2016-23349 Fish Fish and Wildlife Service RULES Endangered and Threatened Species: Eastern Massasauga Rattlesnake; Status, 67193-67214 2016-23538 Endangered and Threatened Wildlife and Plants: Endangered Status for 49 Species From the Hawaiian Islands, 67786-67860 2016-23112 Injurious Wildlife Species: Listing 10 Freshwater Fish and 1 Crayfish, 67862-67899 2016-22778 PROPOSED RULES Endangered and Threatened Wildlife and Plants: Status for the Kenk's Amphipod, 67270-67287 2016-23103 NOTICES Endangered and Threatened Wildlife and Plants: Availability of Proposed Low-Effect Habitat Conservation Plans, Clay, Lake, Marion, and Putnam County, FL, 67376-67377 2016-23646 Food and Drug Food and Drug Administration RULES Food Additives: Permitted in Feed and Drinking Water of Animals; Feed Grade Sodium Formate, 67153-67154 2016-23671 Medical Devices: Neurological Devices; Classification of the Evoked Photon Image Capture Device, 67154-67155 2016-23633 New Animal Drugs: Approval of New Animal Drug Applications; Change of Sponsor's Address, 67149-67153 2016-23230 PROPOSED RULES Food Additives: BASF Corp.; Filing of Food Additive Petition, 67260-67261 2016-23645 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Donor Risk Assessment Questionnaire, 67358-67360 2016-23622 Fee for Using a Rare Pediatric Disease Priority Review Voucher in Fiscal Year 2017, 67360-67362 2016-23624 Fee for Using a Tropical Disease Priority Review Voucher in Fiscal Year 2017, 67356-67358 2016-23623 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 67431-67432 2016-23701 2016-23702 Foreign Trade Foreign-Trade Zones Board NOTICES Reorganizations and Expansions under Alternative Site Frameworks: Zone 214; Lenoir County, NC, 67293 2016-23700 Forest Forest Service NOTICES Environmental Impact Statements; Availability, etc.: Huckleberry Landscape Restoration Project; Idaho, 67289-67291 2016-23650 General Services General Services Administration RULES Federal Acquisition Regulations: Amendment Relating to Multi-Year Contract Authority for Acquisition of Property, 67773-67774 2016-23201 Consolidation and Bundling, 67763-67773 2016-23199 Contractors Performing Private Security Functions, 67776-67778 2016-23203 Federal Acquisition Circular 2005-91; Small Entity Compliance Guide, 67781-67783 2016-23209 Federal Acquisition Circular 2005-91; Introduction, 67726-67728 2016-23193 Limitation on Allowable Government Contractor Employee Compensation Costs, 67778-67780 2016-23204 New Designated Countries—Ukraine and Moldova, 67774-67776 2016-23202 Non-Retaliation for Disclosure of Compensation Information, 67732-67735 2016-23196 Prohibition on Contracting with Corporations with Delinquent Taxes or a Felony Conviction, 67728-67731 2016-23194 Sole Source Contracts for Women-Owned Small Businesses, 67735-67736 2016-23197 Technical Amendments, 67781 2016-23205 Unique Identification of Entities Receiving Federal Awards, 67736-67763 2016-23198 Updating Federal Contractor Reporting of Veterans' Employment, 67731-67732 2016-23195 Health and Human Health and Human Services Department See

Children and Families Administration

See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 67363-67364 2016-23619
Health Resources Health Resources and Services Administration NOTICES Deviations from Competition Requirements: Jurisdictional Approach to Curing Hepatitis C among HIV/HCV Coinfected People of Color Demonstration Project, 67362-67363 2016-23693 Homeland Homeland Security Department See

Coast Guard

See

U.S. Citizenship and Immigration Services

See

U.S. Customs and Border Protection

NOTICES Meetings: Homeland Security Academic Advisory Council, 67366 2016-22123
Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: License for the Use of Personally Identifiable Information Protected Under the Privacy Act of 1974, 67373-67374 2016-23685 Promise Zones Reporting, 67372-67373 2016-23686 Federal Properties Suitable as Facilities to Assist the Homeless, 67374-67375 2016-23558 Interior Interior Department See

Bureau of Safety and Environmental Enforcement

See

Fish and Wildlife Service

See

Land Management Bureau

See

National Park Service

See

Ocean Energy Management Bureau

See

Reclamation Bureau

Internal Revenue Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 67432-67433 2016-23590 2016-23592 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Gasohol; Compressed Natural Gas and Gasoline Excise Tax, 67434-67435 2016-23589 Obligations of States and Political Subdivisions Statutory Elections, 67432 2016-23595 Regulation Project, 67433-67434 2016-23588 International Trade Adm International Trade Administration NOTICES Cost Recovery Programs: EU-U.S. Privacy Shield Framework; Fee Schedule, 67293-67295 2016-23666 International Trade Com International Trade Commission RULES Submission and Consideration of Petitions for Duty Suspensions and Reductions, 67144-67149 2016-23229 Justice Department Justice Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Bulletproof Vest Partnership, 67390-67391 2016-23705 Leadership Engagement Survey, 67390 2016-23704 Labor Department Labor Department See

Labor Statistics Bureau

See

Mine Safety and Health Administration

See

Occupational Safety and Health Administration

RULES Establishing Paid Sick Leave for Federal Contractors, 67598-67724 2016-22964 Implementation of OMB Guidance on Nonprocurement Debarment and Suspension, 67091 2016-23430 PROPOSED RULES Implementation of OMB Guidance on Nonprocurement Debarment and Suspension, 67217 2016-23427 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Program Reporting and Performance Standards System for Indian and Native American Programs, 67391-67392 2016-23638 Child Labor, Forced Labor, and Forced or Indentured Child Labor in the Production of Goods in Foreign Countries, etc., 67392-67393 2016-23612 List of Goods Produced by Child Labor or Forced Labor, 67393 2016-23479
Labor Statistics Labor Statistics Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 67394 2016-23639 Land Land Management Bureau NOTICES Applications for Withdrawal of Public Lands: Oregon; Public Meetings, 67377-67378 2016-23797 Environmental Impact Statements; Availability, etc.: Craters of the Moon National Monument and Preserve, ID, 67378-67379 2016-23566 Meetings: Utah Resource Advisory Council, 67377 2016-23640 Management Management and Budget Office NOTICES Standards for Maintaining, Collecting, and Presenting Federal Data on Race and Ethnicity, 67398-67401 2016-23672 Mine Mine Safety and Health Administration NOTICES Affirmative Decisions on Petitions for Modification Granted in Whole or in Part, 67394-67396 2016-23625 Petitions for Modifications: Applications of Existing Mandatory Safety Standards, 67396-67397 2016-23626 NASA National Aeronautics and Space Administration RULES Federal Acquisition Regulations: Amendment Relating to Multi-Year Contract Authority for Acquisition of Property, 67773-67774 2016-23201 Consolidation and Bundling, 67763-67773 2016-23199 Contractors Performing Private Security Functions, 67776-67778 2016-23203 Federal Acquisition Circular 2005-91; Small Entity Compliance Guide, 67781-67783 2016-23209 Federal Acquisition Circular 2005-91; Introduction, 67726-67728 2016-23193 Limitation on Allowable Government Contractor Employee Compensation Costs, 67778-67780 2016-23204 New Designated Countries—Ukraine and Moldova, 67774-67776 2016-23202 Non-Retaliation for Disclosure of Compensation Information, 67732-67735 2016-23196 Prohibition on Contracting with Corporations with Delinquent Taxes or a Felony Conviction, 67728-67731 2016-23194 Sole Source Contracts for Women-Owned Small Businesses, 67735-67736 2016-23197 Technical Amendments, 67781 2016-23205 Unique Identification of Entities Receiving Federal Awards, 67736-67763 2016-23198 Updating Federal Contractor Reporting of Veterans' Employment, 67731-67732 2016-23195 NOTICES Meetings: Heliophysics Subcommittee of the NASA Advisory Council, 67401 2016-23657 National Highway National Highway Traffic Safety Administration RULES Regulatory Update of Transfer and Sanction Programs, 67158-67170 2016-23788 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 67364-67365 2016-23604 National Institute of Allergy and Infectious Diseases, 67364 2016-23605 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic: South Atlantic Greater Amberjack; Commercial Accountability Measures and Closure, 67215 2016-23587 Fisheries of the Exclusive Economic Zone Off Alaska: Big Skate in the Central Regulatory Area of the Gulf of Alaska, 67215-67216 2016-23830 Observer Coverage Requirements for Bering Sea and Aleutian Islands Management Area Trawl Catcher Vessels, 67113-67118 2016-23536 PROPOSED RULES Fisheries Off West Coast States: Amendment 27 to the Pacific Coast Groundfish Fishery Management Plan, 67287-67288 2016-23684 NOTICES Environmental Impact Statements; Availability, etc.: Pacific Island Fisheries; Aquaculture, 67312 2016-23691 Fisheries off West Coast Sites: Pacific Coast Groundfish Fishery; Fishing Capacity Reduction Program, Sub-loan Repayment, 67295 2016-23709 Meetings: Advisory Committee on U.S. Integrated Ocean Observing System, 67295-67296 2016-23661 Gulf of Mexico Fishery Management Council, 67296-67297 2016-23699 New England Fishery Management Council, 67312-67313 2016-23698 Takes of Marine Mammals Incidental to Specified Activities: Tidal Marsh Restoration Project, Monterey, CA, 67297-67311 2016-23617 Taking of Marine Mammals Incidental to Specified Activities: Construction of the East Span of the San Francisco-Oakland Bay Bridge, 67313-67326 2016-23602 National Park National Park Service NOTICES Environmental Assessments; Availability, etc.: Special Use Permit for a Wireless Telecommunication Facility, 67379 2016-23668 National Register of Historic Places: Notification of Pending Nominations and Related Actions, 67379-67380 2016-23614 National Science National Science Foundation NOTICES Meetings: Advisory Committee for Biological Sciences, 67402 2016-23643 Advisory Committee for Social, Behavioral, and Economic Sciences, 67402 2016-23644 Navy Navy Department NOTICES Environmental Impact Statements; Availability, etc.: Land Acquisition and Airspace Establishment; Twenty-Nine Palms, California, 67334-67337 2016-23649 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Meetings: Advisory Committee on Reactor Safeguards Subcommittee on T-H Phenomenon, 67402-67403 2016-23688 Occupational Safety Health Adm Occupational Safety and Health Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Construction Fall Protection Systems Criteria and Practices, and Training Requirements, 67397-67398 2016-23667 Ocean Energy Management Ocean Energy Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Geological and Geophysical Activities on the Gulf of Mexico Outer Continental Shelf, 67380-67381 2016-23664 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 67403-67404 2016-23620 2016-23694 Postal Service Postal Service RULES Enterprise Payment System and Enterprise PO Boxes Online, 67171 2016-22517 NOTICES Product Changes: First-Class Package Service Negotiated Service Agreement, 67404 2016-23618 Reclamation Reclamation Bureau NOTICES Environmental Impact Statements; Availability, etc.: Columbia River System Operations, 67382-67383 2016-23346 Continued Implementation of the 2008 Operating Agreement for the Rio Grande Project, New Mexico and Texas, 67381-67382 2016-23525 Navajo Generating Station-Kayenta Mine Complex Project, Arizona, 67384-67386 2016-23310 Securities Securities and Exchange Commission RULES Adoption of Updated EDGAR Filer Manual, 67118-67120 2016-23562 NOTICES Applications: SerenityShares Investments LLC, et al., 67404-67406 2016-23611 Self-Regulatory Organizations; Proposed Rule Changes: Chicago Board Options Exchange, Inc., 67408-67412 2016-23609 National Stock Exchange, Inc, 67412-67414 2016-23610 The Depository Trust Co., 67406-67408 2016-23615 Small Business Small Business Administration RULES Acquisition Process: Task and Delivery Order Contracts, Bundling, Consolidation; Correction, 67093 2016-23480 Small Business Government Contracting and National Defense Authorization Act Amendments, 67093 2016-23374 Social Social Security Administration NOTICES Administrative Fees: Non-Program Information, 67414-67415 2016-23739 Non-Program Information; Requests for Detailed Social Security Earnings, 67414 2016-23741 State Department State Department RULES Passports: Service Passports, 67156-67158 2016-23568 NOTICES Designations as Global Terrorists: Anas El Abboubi, aka Anas el-Abboubi, aka Anas al-Abboubi, aka Anas Al-Italy, et al., 67415 2016-23715 Meetings: Shipping Coordinating Committee, 67415-67416 2016-23708 Surface Transportation Surface Transportation Board NOTICES Construction, Acquisitions and Operation Exemptions: New England Transrail, LLC, D/B/A Wilmington and Woburn Terminal Railway in Wilmington and Woburn, MA, 67416-67419 2016-23692 Lease Exemptions Containing Interchange Commitments: Lehigh Railway, LLC from Norfolk Southern Railway Co., 67419-67420 2016-23695 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

Federal Motor Carrier Safety Administration

See

Federal Railroad Administration

See

National Highway Traffic Safety Administration

Treasury Treasury Department See

Foreign Assets Control Office

See

Internal Revenue Service

RULES Importations of Pesticides and Pesticidal Devices, 67140-67144 2016-23578 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 67435 2016-23713
U.S. Citizenship U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Petition for Nonimmigrant Worker, 67371-67372 2016-23682 Guidance for Industry and Staff: Filing Procedures for Employment Authorization and Automatic Extension of Existing Employment Authorization Documents for Liberians Eligible for Deferred Enforced Departure, 67366-67371 2016-23798 Customs U.S. Customs and Border Protection RULES Importations of Pesticides and Pesticidal Devices, 67140-67144 2016-23578 Separate Parts In This Issue Part II Health and Human Services Department, Children and Families Administration, 67438-67595 2016-22986 Part III Labor Department, 67598-67724 2016-22964 Part IV Defense Department, 67726-67783 2016-23201 2016-23199 2016-23203 2016-23209 2016-23193 2016-23204 2016-23202 2016-23196 2016-23194 2016-23197 2016-23205 2016-23198 2016-23195 General Services Administration, 67726-67783 2016-23201 2016-23199 2016-23203 2016-23209 2016-23193 2016-23204 2016-23202 2016-23196 2016-23194 2016-23197 2016-23205 2016-23198 2016-23195 National Aeronautics and Space Administration, 67726-67783 2016-23201 2016-23199 2016-23203 2016-23209 2016-23193 2016-23204 2016-23202 2016-23196 2016-23194 2016-23197 2016-23205 2016-23198 2016-23195 Part V Interior Department, Fish and Wildlife Service, 67786-67860 2016-23112 Part VI Interior Department, Fish and Wildlife Service, 67862-67899 2016-22778 Reader Aids

Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.

81 190 Friday, September 30, 2016 Rules and Regulations DEPARTMENT OF LABOR 2 CFR Part 2998 29 CFR Parts 95 and 98 RIN 1291-AA38 Department of Labor Implementation of OMB Guidance on Nonprocurement Debarment and Suspension AGENCY:

Office of the Assistant Secretary for Administration and Management, Department of Labor (OASAM), Department of Labor

ACTION:

Final rule; confirmation of effective date.

SUMMARY:

On April 29, 2016, the Department of Labor, Office of the Assistant Secretary for Administration and Management (OASAM) published in the Federal Register a direct final rule to implement OMB Guidance on Nonprocurement Debarment and Suspension. The comment period for the direct final rule ended on May 31, 2016, with no comments received. For this reason, OASAM is confirming that the direct final rule became effective on May 31, 2016.

DATES:

The effective date for the direct final rule that published on April 29, 2016 (81 FR 25585) was May 31, 2016.

ADDRESSES:

Electronic copies of this Federal Register notice are available at http://www.regulation.gov.

FOR FURTHER INFORMATION CONTACT:

Duyen Tran Ritchie, Office of the Chief Procurement Officer, (202) 693-7277 [Note: This is not a toll-free telephone number]; or by email at [email protected]

SUPPLEMENTARY INFORMATION:

Confirmation of the effective date: On April 29, 2016, OASAM published a direct final rule in the Federal Register to implement OMB Guidance on Nonprocurement Debarment and Suspension.

OASAM received no comments on the direct final rule. Accordingly, OASAM is confirming the effective date of the direct final rule as of May 31, 2016.

List of Subjects 2 CFR Part 2998

Administrative practice and procedure, Government procurement, Grant programs, Grants administration, Reporting and recordkeeping requirements.

29 CFR Part 95

Foreign governments, Grants and agreements with institutions of higher education, hospitals, and other non-profit organizations, and with commercial organizations, Organizations under the jurisdiction of foreign governments, and International organizations.

29 CFR Part 98

Governmentwide debarment and suspension (nonprocurement).

Authority and Signature

T. Michael Kerr, Assistant Secretary of Labor for Administration and Management, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210, authorized the preparation of this final rule.

Dated: September 16, 2016. T. Michael Kerr, Assistant Secretary for Administration and Management.
[FR Doc. 2016-23430 Filed 9-29-16; 8:45 am] BILLING CODE 4510-7B-P
DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 906 [Doc. No. AMS-SC-16-0021; SC16-906-1 FIR] Oranges and Grapefruit Grown in Lower Rio Grande Valley in Texas; Relaxation of Container and Pack Requirements AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Affirmation of interim rule as final rule.

SUMMARY:

The Department of Agriculture (USDA) is adopting, as a final rule, without change, an interim rule implementing a recommendation from the Texas Valley Citrus Committee (Committee) that relaxed the container and pack requirements prescribed under the marketing order for oranges and grapefruit grown in the Lower Rio Grande Valley in Texas (order). The Committee locally administers the order and is comprised of producers and handlers of Texas citrus operating within the area of production. The interim rule added the word “approximate” to the size specifications of three regulated containers to make the language consistent with other containers specified under the order. This change provides uniformity in the descriptions of containers and helps prevent potential compliance violations stemming from slight variations in container dimensions.

DATES:

Effective October 3, 2016.

FOR FURTHER INFORMATION CONTACT:

Doris Jamieson, Marketing Specialist, or Christian D. Nissen, Regional Director, Southeast Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 291-8614, or Email: [email protected] or [email protected]

Small businesses may obtain information on complying with this and other marketing order and agreement regulations by viewing a guide at the following Web site: http://www.ams.usda.gov/rules-regulations/moa/small-businesses; or by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected]

SUPPLEMENTARY INFORMATION:

This rule is issued under Marketing Agreement and Order No. 906, as amended (7 CFR part 906), regulating the handling of oranges and grapefruit grown in the Lower Rio Grande Valley in Texas, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 12866, 13563, and 13175.

The handling of oranges and grapefruit grown in the Lower Rio Valley in Texas is regulated by 7 CFR part 906. Prior to this change, the descriptions of three of the authorized containers specified exact dimensions whereas the remainder of the containers provide approximate dimensions. The Committee noted that with the containers with specific dimensions, container manufacturers could inadvertently generate containers that have a small variance in size from the specific requirements of the order, causing a handler to be out of compliance with order requirements. Therefore, this rule continues in effect the rule that added the word “approximate” in the description of the container sizes of the three containers with specific dimensions to make the language consistent with the descriptions of the other containers.

In an interim rule published in the Federal Register on June 15, 2016, and effective on June 16, 2016, (81 FR 38881, Doc. No. AMS-SC-16-0021, SC16-906-1 IR), § 906.340 paragraphs (a)(1)(i) through (iii) were amended by adding the word “approximate” to the size specifications of three regulated containers.

Final Regulatory Flexibility Analysis

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 170 producers of oranges and grapefruit in the production area and 13 handlers subject to regulation under the order. Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $750,000, and small agricultural service firms are defined as those whose annual receipts are less than $7,500,000 (13 CFR 121.201).

According to Committee data and information from the National Agricultural Statistics Service, the average grower price for Texas citrus during the 2014-15 season was around $9.53 per box, and total shipments were near 7.8 million boxes. Using the average grower price and shipment information, and assuming a normal distribution of production among all producers, the majority of producers would have annual receipts of less than $750,000. In addition, based on Committee information, the majority of handlers have annual receipts of less than $7,500,000 and could be considered small businesses under SBA's definition. Thus, the majority of Texas citrus producers and handlers may be classified as small entities.

This rule continues in effect the action that changed § 906.340 of the container, pack, and container marking requirements prescribed under the order. This rule adds the word “approximate” to the size specifications of three regulated containers to make the language consistent with other containers specified under the order. This change provides uniformity in the descriptions of containers and helps prevent potential compliance violations stemming from slight variations in container dimensions. Authority for the change is provided in § 906.40.

This action is not expected to impose any additional costs on the industry. However, it is anticipated that this action will have a beneficial impact. Adding the word “approximate” to the dimension requirements for the containers with specific dimensions could prevent possible order violations or potential extra costs associated with replacing incorrect cartons should container manufacturers inadvertently generate containers that do not meet order requirements. The benefits of this rule are expected to be equally available to all fresh orange and grapefruit growers and handlers, regardless of their size.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the order's information collection requirements have been previously approved by the Office of Management and Budget (OMB) and assigned OMB No. 0581-0189, Generic Fruit Crops. No changes in those requirements as a result of this action are necessary. Should any changes become necessary, they would be submitted to OMB for approval.

This rule will not impose any additional reporting or recordkeeping requirements on either small or large Texas citrus handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this rule.

Further, the Committee's meeting was widely publicized throughout the Texas citrus industry, and all interested persons were invited to attend the meeting and participate in Committee deliberations. Like all Committee meetings, the November 17, 2015, meeting was a public meeting, and all entities, both large and small, were able to express their views on this issue.

Comments on the interim rule were required to be received on or before August 15, 2016. One comment was received in support of the change. The commenter stated that it made sense to add the word “approximate” to the rest of the containers to make them consistent with the other containers under the order. The commenter also made other comments which are not relevant to this rulemaking action. Therefore, for the reasons given in the interim rule, we are adopting the interim rule as a final rule, without change.

To view the interim rule, go to: https://www.regulations.gov/document?D=AMS-SC-16-0021-0001.

This action also affirms information contained in the interim rule concerning Executive Orders 12866, 12988, 13175, and 13563; the Paperwork Reduction Act (44 U.S.C. Chapter 35); and the E-Gov Act (44 U.S.C. 101).

After consideration of all relevant material presented, it is found that finalizing the interim rule, without change, as published in the Federal Register (81 FR 38881, June 15, 2016) will tend to effectuate the declared policy of the Act.

List of Subjects in 7 CFR Part 906

Grapefruit, Marketing agreements, Oranges, Reporting and recordkeeping requirements.

PART 906—[AMENDED] Accordingly, the interim rule that amended 7 CFR part 906 and that was published at 81 FR 38881 on June 15, 2016, is adopted as a final rule, without change. Dated: September 23, 2016. Elanor Starmer, Administrator, Agricultural Marketing Service.
[FR Doc. 2016-23502 Filed 9-29-16; 8:45 am] BILLING CODE 3410-02-P
SMALL BUSINESS ADMINISTRATION 13 CFR Part 121 RIN 3245-AG20 Acquisition Process: Task and Delivery Order Contracts, Bundling, Consolidation AGENCY:

U.S. Small Business Administration.

ACTION:

Final rule; correction.

SUMMARY:

The U.S. Small Business Administration (SBA) is correcting a final rule that appeared in the Federal Register on October 2, 2013 (78 FR 61113). The rule, which described how supply procurements should be classified, mistakenly attempted to amend a regulation by removing words that did not exist in the particular paragraph. This document corrects that rule document by removing the instruction.

DATES:

Effective September 30, 2016.

FOR FURTHER INFORMATION CONTACT:

Michael McLaughlin, Office of Policy, Planning & Liaison, U.S. Small Business Administration, 409 Third Street SW., Washington, DC 20416; 202-205-5353; [email protected]

SUPPLEMENTARY INFORMATION:

On June 28, 2013, SBA published a rule in the Federal Register at 78 FR 38811 that amended § 121.404(b) by removing “and the date of certification by SBA” and adding in its place “and, where applicable, the date the SBA program office requests a formal size determination in connection with a concern that otherwise appears eligible for program certification.” The final rule published on October 2, 2013, (78 FR 61113) intended to amend 13 CFR 121.404(b) by removing “date of certification by SBA” and adding in its place “date the Director of the Division of Program Certification and Eligibility or the Associate Administrator for Business Development requests a formal size determination in connection with a concern that is otherwise eligible for program certification.” However, the amendment could not be implemented because at that point the words to be removed did not exist in § 121.404(b). Therefore, SBA is removing that instruction from the final rule published on October 2, 2013.

In the FR Rule Doc. No. 2016-22064 in the issue of October 2, 2013, beginning on page 61113, make the following correction:

On page 61131, first column, remove amendatory instruction number 4c. Dated: September 21, 2016. A. John Shoraka, Associate Administrator for Government Contracting and Business Development.
[FR Doc. 2016-23480 Filed 9-29-16; 8:45 am] BILLING CODE 8025-01-P
SMALL BUSINESS ADMINISTRATION 13 CFR Part 125 RIN 3245-AG58 Small Business Government Contracting and National Defense Authorization Act of 2013 Amendments AGENCY:

U.S. Small Business Administration.

ACTION:

Correcting amendments.

SUMMARY:

The U.S. Small Business Administration (SBA) is correcting a final rule that appeared in the Federal Register on May 31, 2016 (81 FR 34243). The rule described the limitations on subcontracting that apply to set aside contracts. The rule provides that the limitations on subcontracting apply to small business set asides above $150,000 and to 8(a), HUBZone, Service-Disabled and Veteran-Owned (SDVO) or Women-Owned Small Business (WOSB) set asides. The $150,000 threshold appears twice in 13 CFR 125.6(a), and thus could be misinterpreted as applying the threshold to 8(a), HUBZone, SDVO or WOSB set-asides. This action deletes the second $150,000 threshold that appears in 13 CFR 125.6(a).

DATES:

Effective September 30, 2016.

FOR FURTHER INFORMATION CONTACT:

Michael McLaughlin, Office of Policy, Planning & Liaison, U.S. Small Business Administration, 409 Third Street SW., Washington, DC 20416; 202-205-5353; [email protected]

SUPPLEMENTARY INFORMATION:

The U.S. Small Business Administration (SBA) is correcting a final rule that appeared in the Federal Register on May 31, 2016 (81 FR 34243). The rule described the limitations on subcontracting that apply to set aside contracts. The rule provides that the limitations on subcontracting apply to small business set asides above $150,000 and to 8(a), HUBZone, Service-Disabled and Veteran-Owned (SDVO) or Women-Owned Small Business (WOSB) set asides. The $150,000 threshold appears twice in 13 CFR 125.6(a), and thus could be misinterpreted as applying the threshold to 8(a), HUBZone, SDVO or WOSB set-asides. This action deletes the second $150,000 threshold that appears in 13 CFR 125.6(a). This action is consistent with 13 CFR 12.5(f) which provides that the limitations on subcontracting do not apply to small business set aside contracts with a value greater than $3,500 but not $150,000, and 13 CFR 121.406(d) which provides that the performance requirements (limitations on subcontracting) do not apply to small business set-aside acquisitions with an estimated value between $3,500 and $150,000.

List of Subjects in 13 CFR Part 125

Government contracts, Government procurement, Reporting and recordkeeping requirements, Small businesses, Technical assistance, Veterans.

Accordingly, 13 CFR part 125 is corrected by making the following correcting amendments:

PART 125—GOVERNMENT CONTRACTING PROGRAMS 1. The authority citation for part 125 continues to read as follows: Authority:

15 U.S.C. 632(p), (q); 634(b)(6); 637; 644; 657f; 657r.

2. Amend § 125.6 by revising paragraph (a) introductory text to read as follows:
§ 125.6 What are the prime contractor's limitations on subcontracting?

(a) General. In order to be awarded a full or partial small business set-aside contract with a value greater than $150,000, an 8(a) contract, an SDVO SBC contract, a HUBZone contract, a WOSB or EDWOSB contract pursuant to part 127 of this chapter, a small business concern must agree that:

Dated: September 15, 2016. A. John Shoraka, Associate Administrator for Government Contracting and Business Development.
[FR Doc. 2016-23374 Filed 9-29-16; 8:45 am] BILLING CODE 8025-01-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 23 [Docket No. FAA-2016-9172; Special Conditions No. 23-276-SC] Special Conditions: DAHER-SOCATA, Model TBM 700; Inflatable Four-Point Restraint Safety Belt With an Integrated Airbag Device AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions; request for comments.

SUMMARY:

These special conditions are issued for the installation of an inflatable four-point restraint safety belt with an integrated airbag device at the pilot and copilot seats on the DAHER-SOCATA, Model TBM 700 airplane. These airplanes, as modified by the installation of these inflatable safety belts, will have novel and unusual design features associated with the upper-torso restraint portions of the four-point safety belts, which contain an integrated airbag device. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

The effective date of these special conditions is September 30, 2016. We must receive your comments by October 31, 2016.

ADDRESSES:

Send comments identified by docket number FAA-2016-9172 using any of the following methods:

Federal eRegulations 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 of 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: The FAA will post all comments it receives, without change, to http://regulations.gov, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov.

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:

Mr. Bob Stegeman, Federal Aviation Administration, Aircraft Certification Service, Small Airplane Directorate, ACE-111, 901 Locust, Room 301, Kansas City, MO; telephone (816)-329-4140; facsimile (816)-329-4090.

SUPPLEMENTARY INFORMATION:

The FAA has determined, in accordance with 5 U.S.C. 553(b)(3)(B) and 553(d)(3), that notice and opportunity for prior public comment hereon are unnecessary because the substance of this special condition has been subject to the public comment process in several prior instances with no substantive comments received. The FAA, therefore, finds that good cause exists for making these special conditions effective upon issuance.

Special condition No. Company/airplane model 23-03-01-SC 1 AMSAFE, Incorporated, Model CH2000. 23-03-022-SC 2 Goodrich Aircraft Interior Products, Models AT-401, AT-402, AT-502, AT-602, and AT-802. 23-04-01-SC 3 AMSAFE, Incorporated, Models A1, A1A, and A1B. 1http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgSC.nsf/0/A5B140165998E8B586256D66005553C5?OpenDocument&Highlight=inflatable%20restraint%20safety%20belt%20with%20an%20integrated%20airbag. 2http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgSC.nsf/0/8122AF4A25F6F8BE86256C83005FF817?OpenDocument&Highlight=inflatable%20four-point%20restraint%20safety%20belt%20with%20an%20integrated%20airbag. 3http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgSC.nsf/0/262C53C9CF0F4FFF86256F08004F5D26?OpenDocument&Highlight=inflatable%20restraint%20safety%20belt%20with%20an%20integrated%20airbag. Comments Invited

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

We will consider all comments we receive on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these special conditions based on the comments we receive.

Background

On January 5, 2016, DAHER-SOCATA (SOCATA) applied for FAA validation for the optional installation of a four-point safety belt restraint system for the pilot and copilot seats and incorporating integrated inflatable airbags for both on the Model TBM 700 airplane. The Model TBM 700 airplane is a single-engine powering a four bladed turbopropellor. It has a maximum takeoff weight of 6578 pounds (2984 kg). In addition to a pilot and copilot, it can seat up to five passengers.

The inflatable restraint systems are four-point safety belt restraint systems consisting of a lap belt and shoulder harness with an inflatable airbag attached to the shoulder harness straps. The inflatable portion of the restraint system will rely on sensors electronically activating the inflator for deployment.

If an emergency landing occurs, the airbags will inflate and provide a protective cushion between the head of the occupant (pilot and copilot) and the structure of the airplane. This will reduce the potential for head and torso injury. The inflatable restraint behaves in a manner similar to an automotive airbag; however, the airbag is integrated into the shoulder harness straps. Airbags and inflatable restraints are standard in the automotive industry; the use of an inflatable restraint system is novel for general aviation.

The FAA has determined that this project will be accomplished on the basis of providing the same level of safety as the current certification requirements of airplane occupant restraint systems. The FAA has the following two primary safety concerns with the installation of airbags or inflatable restraints that—

1. They perform properly under foreseeable operating conditions; and

2. They do not perform in a manner or at such times as to impede the pilot's ability to maintain control of the airplane or constitute a hazard to the airplane or occupants.

The latter point has the potential to be the more rigorous of the requirements. An unexpected deployment while conducting the takeoff or landing phases of flight may result in an unsafe condition. The unexpected deployment may either startle the pilot or generate a force sufficient to cause a sudden movement of the control yoke. Both actions may result in a loss of control of the airplane. The consequences are magnified due to the low operating altitudes during these phases of flight. The FAA has considered this when establishing these special conditions.

The inflatable restraint system relies on sensors to electronically activate the inflator for deployment. These sensors could be susceptible to inadvertent activation, causing deployment in a potentially unsafe manner. The consequences of an inadvertent deployment must be considered in establishing the reliability of the system. SOCATA must show that the effects of an inadvertent deployment in flight are not a hazard to the airplane and that an inadvertent deployment is extremely improbable. In addition, general aviation aircraft are susceptible to a large amount of cumulative wear and tear on a restraint system. The potential for inadvertent deployment may increase as a result of this cumulative damage. Therefore, the impact of wear and tear resulting with an inadvertent deployment must be considered. The effect of this cumulative damage means duration of life expectations must be established for the appropriate system components in the restraint system design.

There are additional factors to be considered to minimize the chances of inadvertent deployment. General aviation airplanes are exposed to a unique operating environment, since the same airplane may be used by both experienced and student pilots. The effect of this environment on inadvertent deployment must be understood. Therefore, qualification testing of the firing hardware and software must consider the following—

1. The airplane vibration levels appropriate for a general aviation airplane; and

2. The inertial loads that result from typical flight or ground maneuvers, including gusts and hard landings.

Any tendency for the firing mechanism to activate as a result of these loads or acceleration levels is unacceptable.

Other influences on inadvertent deployment include High-Intensity Radiated Fields (HIRF) and lightning. Since the sensors that trigger deployment are electronic, they must be protected from the effects of these threats. To comply with HIRF and lightning requirements, the inflatable restraint system is considered a critical system, since its inadvertent deployment could have a hazardous affect on the airplane.

Given the level of safety of the occupant restraints currently installed, the inflatable restraint system must show that it will offer an equivalent level of protection for an emergency landing. If an inadvertent deployment occurs, the restraint must still be at least as strong as a Technical Standard Order approved belt and shoulder harnesses. There is no requirement for the inflatable portion of the restraint to offer protection during multiple impacts, where more than one impact would require protection.

Where installed, the inflatable restraint system must deploy and provide protection for each occupant under an emergency landing condition. The Model TBM 700 airplane seats are certificated to the structural requirements of § 23.562; therefore, the test emergency landing pulses identified in § 23.562 must be used to satisfy this requirement.

A wide range of occupants may use the inflatable restraint; therefore, the protection offered by this restraint should be effective for occupants that range from the fifth percentile female to the ninety-fifth percentile male. Energy absorption must be performed in a consistent manner for this occupant range.

In support of this operational capability, there must be a means to verify the integrity of this system before each flight. SOCATA may establish inspection intervals where they have demonstrated the system to be reliable between these intervals.

An inflatable restraint may be armed even though no occupant is using the seat. While there will be means to verify the integrity of the system before flight, it is also prudent to require unoccupied seats with active restraints not pose a hazard to any occupant. This will protect any individual performing maintenance inside the cockpit while the aircraft is on the ground. The restraint must also provide suitable visual warnings that would alert rescue personnel to the presence of an inflatable restraint system.

The design must also prevent the inflatable seatbelt from being incorrectly buckled or installed to avoid hindering proper deployment of the airbag. SOCATA may show that such deployment is not hazardous to the occupant and will still provide the required protection.

The cabins of the SOCATA, Model TBM 700 airplane identified in these special conditions are confined areas, and the FAA is concerned that noxious gasses may accumulate if the airbag deploys. When deployment occurs, either by design or inadvertently, there must not be a release of hazardous quantities of gas or particulate matter into the cockpit.

An inflatable restraint should not increase the risk already associated with fire. The inflatable restraint should be protected from the effects of fire to avoid creating an additional hazard such as, a rupture of the inflator, for example.

Finally, the airbag is likely to have a large volume displacement, and possibly impede the egress of an occupant. Since the bag deflates to absorb energy, it is likely that the inflatable restraint would be deflated at the time an occupant would attempt egress. However, it is appropriate to specify a time interval after which the inflatable restraint may not impede rapid egress. Ten seconds has been chosen as reasonable time. This time limit offers a level of protection throughout an impact event.

Type Certification Basis

Under the provisions of 14 CFR 21.17, SOCATA must show that the Model TBM 700 airplane continues to meet the applicable provisions of the applicable regulations in effect on the date of application for the type certificate. The regulations incorporated by reference in the type certificate are commonly referred to as the original type certification basis.

The certification basis also includes all exemptions, if any; equivalent level of safety findings, if any; and special conditions not relevant to the special conditions adopted by this rulemaking action.

If the Administrator determines that the applicable airworthiness regulations (i.e., 14 CFR part 23) do not contain adequate or appropriate safety standards for the inflatable restraint, as installed on the SOCATA, Model TBM 700 airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

In addition to the applicable airworthiness regulations and special conditions, the Model TBM 700 airplane must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36, and the FAA must issue a finding of regulatory adequacy under section 611 of Public Law 92-574, the Noise Control Act of 1972.

The FAA issues special conditions, as defined in § 11.19, under § 11.38 and they become part of the type certification basis under § 21.17(a)(2).

Special conditions are initially applicable to the models for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, the special conditions would also apply to the other model.

Novel or Unusual Design Features

The SOCATA, Model TBM 700 airplane will incorporate the following novel or unusual design feature: Installation of inflatable four-point restraint safety belt with an integrated airbag device for the pilot and copilot seats.

Discussion

The purpose of the airbag is to reduce the potential for injury in the event of an accident. In a severe impact, an airbag will deploy from the shoulder harness in a manner similar to an automotive airbag. The airbag will deploy between the head of the occupant and airplane interior structure, which will provide some protection to the head of the occupant. The restraint will rely on sensors to electronically activate the inflator for deployment.

The Code of Federal Regulations states performance criteria for seats and restraints in an objective manner. However, none of these criteria are adequate to address the specific issues raised concerning inflatable restraints. Therefore, the FAA has determined that in addition to the requirements of part 21 and part 23, special conditions are needed to address the installation of this inflatable restraint.

Accordingly, these special conditions are adopted for the SOCATA, Model TBM 700 airplanes equipped with four-point inflatable restraints. Other conditions may be developed, as needed, based on further FAA review and discussions with the manufacturer and civil aviation authorities.

Applicability

As discussed above, these special conditions are applicable to the SOCATA, Model TBM 700 airplane. Should SOCATA apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, the special conditions would apply to that model as well.

Conclusion

This action affects only certain novel or unusual design features on one model of airplanes. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.

Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the Federal Register; however, as the certification date for the SOCATA, Model TBM 700 airplane is imminent, the FAA finds that good cause exists to make these special conditions effective upon issuance.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances, identified above, and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, notice and opportunity for prior public comment hereon are unnecessary and the FAA finds good cause, in accordance with 5 U.S.C. 553(b)(3)(B) and 553(d)(3), making these special conditions effective upon issuance. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

List of Subjects in 14 CFR Part 23

Aircraft, Aviation safety, Signs and symbols.

Citation

The authority citation for these special conditions is as follows:

Authority:

49 U.S.C. 106(g), 40113 and 44701; 14 CFR 21.16 and 21.17; and 14 CFR 11.38 and 11.19.

The Special Conditions

The FAA has determined that this project will be accomplished on the basis of not lowering the current level of safety of the SOCATA, Model TBM 700 airplane occupant restraint systems. Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the SOCATA, Model TBM 700 airplane.

1. Installation of inflatable four-point restraint safety belt with an integrated airbag device.

a. It must be shown that the inflatable restraint will deploy and provide protection under emergency landing conditions. Compliance will be demonstrated using the dynamic test condition specified in § 23.562(b)(2). It is not necessary to account for floor warpage, as required by § 23.562(b)(3), or vertical dynamic loads, as required by § 23.562(b)(1). The means of protection must take into consideration a range of stature from a 5th percentile female to a 95th percentile male. The inflatable restraint must provide a consistent approach to energy absorption throughout that range.

b. The inflatable restraint must provide adequate protection for the occupant. In addition, unoccupied seats that have an active restraint must not constitute a hazard to any occupant.

c. The design must prevent the inflatable restraint from being incorrectly buckled and incorrectly installed, such that the airbag would not properly deploy. It must be shown that such deployment is not hazardous to the occupant and will provide the required protection.

d. It must be shown that the inflatable restraint system is not susceptible to inadvertent deployment as a result of wear and tear or the inertial loads resulting from in-flight or ground maneuvers (including gusts and hard landings) that are likely to be experienced in service.

e. It must be extremely improbable for an inadvertent deployment of the restraint system to occur, or an inadvertent deployment must not impede the pilot's ability to maintain control of the airplane or cause an unsafe condition or hazard to the airplane. In addition, a deployed inflatable restraint must be at least as strong as a Technical Standard Order, TSO-C114, certificated belt and shoulder harness.

f. It must be shown that deployment of the inflatable restraint system is not hazardous to the occupant or will not result in injuries that could impede rapid egress. This assessment should include occupants whose restraint is loosely fastened.

g. It must be shown that an inadvertent deployment that could cause injury to a standing or sitting person is improbable. In addition, the restraint must also provide suitable visual warnings that would alert rescue personnel to the presence of an inflatable restraint system.

h. It must be shown that the inflatable restraint will not impede rapid egress of the occupants 10 seconds after its deployment.

i. To comply with HIRF and lightning requirements, the inflatable restraint system is considered a critical system since its deployment could have a hazardous affect on the airplane.

j. It must be shown that the inflatable restraints will not release hazardous quantities of gas or particulate matter into the cabin.

k. The inflatable restraint system installation must be protected from the effects of fire such that no hazard to occupants will result.

l. There must be a means to verify the integrity of the inflatable restraint activation system before each flight or it must be demonstrated to reliably operate between inspection intervals.

m. A life limit must be established for appropriate system components.

n. Qualification testing of the internal firing mechanism must be performed at vibration levels appropriate for a general aviation airplane.

Issued in Kansas City, Missouri, on September 22, 2016. Pat Mullen, Acting Manager, Small Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2016-23564 Filed 9-29-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2016-9225; Special Conditions No. 25-639-SC] Special Conditions: Embraer S.A., Model ERJ 190-300 Series Airplanes; Electronic Flight Control System: Control Surface Position Awareness, Multiple Modes of Operation AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions; request for comments.

SUMMARY:

These special conditions are issued for the Embraer S.A. Model ERJ 190-300 series airplanes. These airplanes will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. This design feature is a fly-by-wire electronic flight control system (EFCS) and no direct coupling from the flight deck controller to the control surface. As a result, the pilot is not aware of the actual control surface position. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

This action is effective on Embraer S.A. on September 30, 2016. We must receive your comments by November 14, 2016.

ADDRESSES:

Send comments identified by docket number FAA-2016-9225 using any of the following methods:

Federal eRegulations 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: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478), as well as at http://DocketsInfo.dot.gov/.

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 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:

Joe Jacobsen, FAA, Airplane and Flightcrew Interface Branch, ANM-111, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2011; facsimile 425-227-1149.

SUPPLEMENTARY INFORMATION:

The substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon publication in the Federal Register.

Comments Invited

We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

Background

On September 13, 2013, Embraer S.A. applied for an amendment to Type Certificate (TC) No. A57NM to include the new Model ERJ 190-300 series airplanes. The ERJ 190-300, which is a derivative of the ERJ 190-100 STD currently approved under TC No. A57NM, is a 97-114 passenger transport category airplane with two Pratt & Whitney Model PW1900G engines, a new wing design with a high aspect ratio and raked wingtip, and digital fly-by-wire EFCS with closed loop control for all surfaces and with full envelope protection.

The EFCS technology has outpaced the current airworthiness standards; therefore, the FAA required special conditions to ensure appropriate mode recognition by the flightcrew for events that significantly change the operating mode of the EFCS.

Type Certification Basis

Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.101, Embraer S.A. must show that the ERJ 190-300 meets the applicable provisions of the regulations listed in Type Certificate No. A57NM or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. Embraer S.A. must show that the ERJ 190-300 meets the applicable provisions of 14 CFR part 25, as amended by Amendments 25-1 through 25-137.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the ERJ 190-300 because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design features, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the ERJ 190-300 must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

Novel or Unusual Design Features

The ERJ 190-300 will incorporate the following novel or unusual design features: A fly-by-wire EFCS and no direct coupling from the flight deck controller to the control surface.

Discussion

As a result of the EFCS and lack of direct coupling from the flight deck controller to the control surface, the pilot is not aware of the actual control surface position. Some unusual flight conditions, arising from atmospheric conditions and/or airplane or engine failures, may result in full or nearly full surface deflection. Unless the flightcrew is made aware of excessive deflection or impending control surface limiting, piloted or auto-flight system control of the airplane might be inadvertently continued in such a manner to cause loss of control or other unsafe stability or performance characteristics. The airworthiness standards do not contain adequate or appropriate safety standards for the conditions that result from the EFCS and lack of direct coupling from the flight deck controller to the control surface.

To establish a level of safety equivalent to that established in the regulations, these special conditions are established. These special conditions require that the flightcrew receive a suitable flight control position annunciation when a flight condition exists in which nearly full surface authority (not crew-commanded) is being used. Suitability of such a display must take into account that some pilot-demanded maneuvers (e.g., rapid roll) are necessarily associated with intended full performance, which may saturate the surface. Therefore, simple alerting systems function in both intended and unexpected control-limiting situations. As a result, they must be properly balanced between providing necessary crew awareness and being a potential nuisance to the flightcrew. A monitoring system that compares airplane motion and surface deflection with pilot inputs could help reduce nuisance alerting.

These special conditions also address flight control system mode annunciation. Suitable mode annunciation must be provided to the flightcrew for events that significantly change the operating mode of the system but do not merit the classic “failure warning.”

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

Applicability

As discussed above, these special conditions are applicable to the ERJ 190-300 series airplanes. Should Embraer S.A. apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

Conclusion

This action affects only certain novel or unusual design features on one model of airplanes. It is not a rule of general applicability.

The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the Federal Register. The FAA is requesting comments to allow interested persons to submit views that may not have been submitted in response to the prior opportunities for comment described above.

List of Subjects in 14 CFR Part 25

Aircraft, Aviation safety, Reporting and recordkeeping requirements.

The authority citation for these special conditions is as follows: Authority:

49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

The Special Conditions

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Embraer S.A. Model ERJ 190-300 series airplanes.

1. In addition to the requirements of 14 CFR 25.143, 25.671, and 25.672, the following requirements apply:

a. The system design must ensure that the flightcrew is made suitably aware whenever the primary control means nears the limit of control authority.

Note:

The term “suitably aware” indicates annunciations provided to the flightcrew are appropriately balanced between nuisance and that necessary for crew awareness.

b. If the design of the flight control system has multiple modes of operation, a means must be provided to indicate to the flightcrew any mode that significantly changes or degrades the normal handling or operational characteristics of the airplane.

Issued in Renton, Washington, on September 23, 2016. Michael Kaszycki, Assistant Manager, Transport Airplane Directorate, Aircraft Certification Service.
[FR Doc. 2016-23665 Filed 9-29-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-5307; Directorate Identifier 2016-NE-08-AD; Amendment 39-18658; AD 2016-19-09] RIN 2120-AA64 Airworthiness Directives; General Electric Company Turbofan Engines AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for all General Electric Company (GE) GE90-76B, GE90-77B, GE90-85B, GE90-90B, and GE90-94B turbofan engines with high-pressure compressor (HPC) stage 8-10 spool, part numbers (P/Ns) 1694M80G04, 1844M90G01, or 1844M90G02, installed. This AD was prompted by reports of cracks found on the seal teeth of the HPC stage 8-10 spool. This AD requires eddy current inspections (ECIs) or fluorescent penetrant inspections (FPIs) of the HPC stage 8-10 spool seal teeth and removing from service those parts that fail inspection. We are issuing this AD to prevent failure of the HPC stage 8-10 spool, uncontained rotor release, damage to the engine, and damage to the airplane.

DATES:

This AD is effective November 4, 2016.

ADDRESSES:

For service information identified in this final rule, contact General Electric Company, GE-Aviation, Room 285, 1 Neumann Way, Cincinnati, OH 45215, phone: 513-552-3272; email: [email protected] You may view this service information at the FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-5307.

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-2016-5307; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

John Frost, Aerospace Engineer, Engine Certification Office, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7756; fax: 781-238-7199; email: [email protected]

SUPPLEMENTARY INFORMATION: Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all GE GE90-76B, GE90-77B, GE90-85B, GE90-90B, and GE90-94B turbofan engines with HPC stage 8-10 spool, P/Ns 1694M80G04, 1844M90G01, or 1844M90G02, installed. The NPRM published in the Federal Register on April 11, 2016 (81 FR 21286). The NPRM was prompted by reports of cracks found on the seal teeth of the HPC stage 8-10 spool during shop visits. The cracks initiated due to higher than intended temperatures at the seal teeth and damage to seal teeth coating from heavy rubs into the honeycomb. GE is developing a modification to address the unsafe condition.

The NPRM proposed to require ECIs or FPIs of the HPC stage 8-10 spool seal teeth and removing from service those parts that fail inspection. We are issuing this AD to prevent failure of the HPC stage 8-10 spool, uncontained rotor release, damage to the engine, and damage to the airplane.

Comments

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

Support of the NPRM as Written

Boeing and United Airlines support the NPRM as written.

Request To Clarify Performance of ECI and FPI

Nao Seto requested that the FAA clarify with which service information the ECI and FPI will be performed.

We agree. We added a statement to compliance paragraph (e) in this AD indicating the GE service documents in which guidance can be found for performing the ECI and the FPI.

Request To Clarify Supplementary Information

General Electric Aviation requested that the Discussion paragraph be changed to read as follows: “Based on recent testing, change the root cause of crack initiation from that of degraded surface properties caused by an alloy depletion zone (ADZ) to cracks initiated due to higher than intended temperatures at the seal teeth and damage to seal teeth coating from heavy rubs into the honeycomb.” Recent testing and analysis have shown that the temperatures in the seal teeth are higher than design intent. This elevated temperature increases the stress in the region of the seal teeth, aligning with the cracking observed. GE also completed testing to determine the impact of alloy depletion zone on material capability. Testing showed material capability was not impacted.

We agree. We oversaw the recent testing and analysis which supports the requested change. We changed the Discussion paragraph of this AD accordingly.

Request To Add Ultrasonic Inspection (USI) to the Compliance

GE requested that USI be added to the Compliance section as an alternate inspection method. Additionally, GE requested that we revise the Related Information paragraph (h)(2) of this AD by updating the service information to revision 1 based on the qualifying USI procedure.

We disagree. USI procedures are not an acceptable alternative to the existing ECI and FPI procedures specified in this AD. A USI is not a viable procedure for compliance at this time, therefore, we are not updating the service information in paragraph (h)(2) to Revision 1. We may consider an AMOC after sufficient substantiated data is presented to the FAA. We did not change this AD.

Conclusion

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD as proposed.

Related Service Information

We reviewed GE Service Bulletins SB 72-1141 R00, dated December 2, 2015; and SB 72-1142 R00, dated November 30, 2015. The service information describes procedures for inspecting the HPC stage 8-10 spool seal teeth.

Costs of Compliance

We estimate that this AD affects 54 engines installed on airplanes of U.S. registry. We also estimate that it will take about 1 hour per engine to comply with this AD. The average labor rate is $85 per hour. We estimate 14 parts will fail inspection at a pro-rated cost of $400,000 per part. Based on these figures, we estimate the total cost of this AD to U.S. operators to be $5,604,590.

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 to the extent that it justifies making a regulatory distinction, and

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

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-19-09 General Electric Company: Amendment 39-18658; Docket No. FAA-2016-5307; Directorate Identifier 2016-NE-08-AD. (a) Effective Date

This AD is effective November 4, 2016.

(b) Affected ADs

None.

(c) Applicability

This AD applies to General Electric Company (GE) GE90-76B, GE90-77B, GE90-85B, GE90-90B, and GE90-94B turbofan engines with a high-pressure compressor (HPC) stage 8-10 spool, part numbers 1694M80G04, 1844M90G01, or 1844M90G02, installed.

(d) Unsafe Condition

This AD was prompted by reports of cracks found on the seal teeth of the HPC stage 8-10 spool. We are issuing this AD to prevent failure of the HPC stage 8-10 spool, uncontained rotor release, damage to the engine, and damage to the airplane.

(e) Compliance

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

(1) Perform an eddy current inspection (ECI) or fluorescent penetrant inspection (FPI) of the seal teeth of the HPC stage 8-10 spool as follows:

(i) For HPC stage 8-10 spools with fewer than 11,000 cycles since new (CSN) on the effective day of this AD, inspect at the next shop visit after reaching 6,000 CSN, not to exceed 12,500 CSN.

(ii) For HPC stage 8-10 spools with 11,000 CSN or more on the effective day of this AD, inspect within the next 1,500 cycles in service.

(iii) Thereafter, inspect the seal teeth of the HPC stage 8-10 spool at each shop visit.

(2) Remove from service any HPC stage 8-10 spool that fails the ECI or FPI required by paragraph (e)(1) of this AD and replace with a part eligible for installation.

(3) Guidance on performing the ECI and the FPI can be found in GE Service Bulletins (SBs) SB 72-1141 R00, dated December 2, 2015 and SB 72-1142 R00, dated November 30, 2015.

(f) Definition

For the purpose of this AD, an engine shop visit is the induction of an engine into the shop for maintenance during which the compressor discharge pressure seal face is exposed.

(g) Alternative Methods of Compliance (AMOCs)

The Manager, Engine Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request. You may email your request to: [email protected]

(h) Related Information

(1) For more information about this AD, contact John Frost, Aerospace Engineer, Engine Certification Office, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7756; fax: 781-238-7199; email: [email protected]

(2) GE SB 72-1141, R00, dated December 2, 2015 and GE SB 72-1142, R00, dated November 30, 2015, which are not incorporated by reference in this AD, can be obtained from GE, using the contact information in paragraph (h)(3) of this AD.

(3) For service information identified in this AD, contact General Electric Company, GE-Aviation, Room 285, 1 Neumann Way, Cincinnati, OH 45215, phone: 513-552-3272; email: [email protected]

(4) You may view this service information at the FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

(i) Material Incorporated by Reference

None.

Issued in Burlington, Massachusetts, on September 26, 2016. Colleen M. D'Alessandro, Manager, Engine & Propeller Directorate, Aircraft Certification Service.
[FR Doc. 2016-23740 Filed 9-29-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-4866; Directorate Identifier 2015-NE-33-AD; Amendment 39-18648; AD 2016-18-17] RIN 2120-AA64 Airworthiness Directives; Honeywell International Inc. Turboprop and Turboshaft Engines AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain Honeywell International Inc. (Honeywell) TPE331 model turboprop engines and TSE331-3U model turboshaft engines. This AD was prompted by the discovery of cracks in a 2nd stage compressor impeller during a routine shop visit. This AD requires removal of the 2nd stage compressor impeller. We are issuing this AD to prevent failure of the compressor impeller, uncontained part release, damage to the engine, and damage to the airplane.

DATES:

This AD is effective November 4, 2016.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-4866; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Joseph Costa, Aerospace Engineer, Los Angeles Aircraft Certification Office, FAA, Transport Airplane Directorate, 3960 Paramount Blvd., Lakewood, CA 90712-4137; phone: 562-627-5246; fax: 562-627-5210; email: [email protected]

SUPPLEMENTARY INFORMATION:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Honeywell TPE331 model turboprop engines and TSE331-3U model turboshaft engines. The NPRM published in the Federal Register on March 15, 2016 (81 FR 13764) (“the NPRM”). The NPRM was prompted by the discovery of cracks in a 2nd stage compressor impeller during a routine shop visit. The NPRM proposed to require removal of the 2nd stage compressor impeller. We are issuing this AD to prevent failure of the compressor impeller, uncontained part release, damage to the engine, and damage to the airplane.

Comments

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

Request To Change Compliance

Bearskin Airlines and Turbine Standard, LTD requested that the compliance time interval be changed because many TPE331 engine operators are on a Continuous Airworthiness Maintenance (CAM) program. This program does not require impeller inspections per the overhaul manual and the impeller is not considered as “overhauled”. AD compliance under CAM may be interpreted as being within 200 cycles or 30 to 45 days.

Other commenters requested that the compliance time be changed to a less aggressive time interval appropriate to the unsafe condition. Many high-usage operators have suspect impellers that currently exceed 7,000 cycles since the last compressor inspection.

We agree. We changed compliance interval in paragraph (e)(1) of this AD.

Request To Allow Other Inspection Facilities To Return Impellers to Service

Turbine Standard, LTD requested that this AD allow other inspection facilities to return impellers to service. There are many inspection facilities that are capable of inspecting the 2nd stage compressor impeller.

We partially agree. We agree that many inspection facilities are capable of performing a focused inspection of the 2nd stage compressor impeller. We disagree with allowing other inspection and regrinding facilities to return impellers to service. This AD does not address inspection or regrinding of the curvic area of the 2nd stage compressor impeller. Regrinding of the curvic area of the 2nd stage compressor impeller involves machining of a critical rotating part, which must be approved by the FAA. We did not change this AD.

Request To Change Costs of Compliance

Honeywell; Perimeter Aviation, LP; and Intercontinental Jet Service Corp. requested that the costs of compliance be changed because the NPRM is not representative of the impeller's replacement costs. Honeywell quotes the cost of a new 2nd stage compressor impeller at $11,922.50.

We partially agree. We agree with the comment because the costs were not clearly defined. We disagree with the comment because replacement costs are based on pro-rated costs that are estimated at 50% of new parts costs. Since issuing the NPRM, the FAA estimated that 30% of impellers will be scrapped; therefore, we changed the costs of compliance accordingly.

Request To Include Service Information

The European Aviation Safety Agency, Honeywell, and Candler & Associates, Inc. requested that service information be included in this AD. Having the service information available would aid in understanding any differences between this AD and the service information.

We agree. We added Honeywell Service Bulletin (SB) TPE331-72-2208, dated July 29, 2014, as related information in this AD.

Conclusion

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

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

Related Service Information

We reviewed Honeywell SB TPE331-72-2208, dated July 29, 2014. The SB describes procedures for replacing the 2nd stage compressor impeller.

Costs of Compliance

We estimate that this AD will affect 4,000 engines installed on airplanes of U.S. registry. We estimate that it will take 2 hours per engine to comply with this AD. The average labor rate is $85 per hour. We also estimate that required parts will cost about $4,404.50 per engine. Based on these figures, we estimate the total cost of this AD on U.S. operators to be $18,298,000.

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 to the extent that it justifies making a regulatory distinction, and

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

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-18-17 Honeywell International Inc. (Type Certificate Previously Held by AlliedSignal Inc., Garrett Engine Division; Garrett Turbine Engine Company; and AiResearch Manufacturing Company of Arizona): Amendment 39-18648; Docket No. FAA-2015-4866; Directorate Identifier 2015-NE-33-AD. (a) Effective Date

This AD is effective November 4, 2016.

(b) Affected ADs

None.

(c) Applicability

This AD applies to Honeywell International Inc. (Honeywell) TPE331-3U, -3UW, -5, -5A, -5AB, -5B, -6, -6A, -8, -10, -10AV, -10GP, -10GT, -10N, -10P, -10R, -10T, -10U, -10UA, -10UF, -10UG, -10UGR, -10UR, and -11U model turboprop engines, and TSE331-3U model turboshaft engines, with a 2nd stage compressor impeller, part number (P/N) 893482-1 through -5, inclusive, or P/N 3107056-1 or P/N 3107056-2, installed.

(d) Unsafe Condition

This AD was prompted by the discovery of cracks in a 2nd stage compressor impeller during a routine shop visit. We are issuing this AD to prevent failure of the compressor impeller, uncontained part release, damage to the engine, and damage to the airplane.

(e) Compliance

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

(1) Remove from service the 2nd stage compressor impeller at next removal of the 2nd stage compressor impeller from the engine or before exceeding 11,500 cycles in service after the effective date of this AD, whichever occurs first.

(2) Reserved.

(f) Installation Prohibition

After the effective date of this AD, do not install a 2nd stage compressor impeller, part number (P/N) 893482-1 through -5, inclusive, or P/N 3107056-1 or P/N 3107056-2, into any engine.

(g) Alternative Methods of Compliance (AMOCs)

The Manager, Los Angeles Aircraft Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request.

(h) Related Information

(1) For more information about this AD, contact Joseph Costa, Aerospace Engineer, Los Angeles Aircraft Certification Office, FAA, Transport Airplane Directorate, 3960 Paramount Blvd., Lakewood, CA 90712-4137; phone: 562-627-5246; fax: 562-627-5210; email: [email protected]

(2) Honeywell SB TPE331-72-2208, dated July 29, 2014, which is not incorporated by reference in this AD, can be obtained from Honeywell, using the contact information in paragraph (h)(3) of this AD.

(3) For Honeywell service information identified in this AD, contact Honeywell International Inc., 111 S 34th Street, Phoenix, AZ 85034-2802; phone: 800-601-3099; Internet: https://myaerospace.honeywell.com/wps/portal/!ut/.

(4) You may view this service information at FAA, Engine & Propeller Directorate, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

(i) Material Incorporated by Reference

None.

Issued in Burlington, Massachusetts, on August 26, 2016. Colleen M. D'Alessandro, Manager, Engine & Propeller Directorate, Aircraft Certification Service.
[FR Doc. 2016-23263 Filed 9-29-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9144; Directorate Identifier 2016-SW-014-AD; Amendment 39-18667; AD 2016-20-01] RIN 2120-AA64 Airworthiness Directives; Bell Helicopter Textron Canada Limited (Bell) Helicopters AGENCY:

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

ACTION:

Final rule; request for comments.

SUMMARY:

We are adopting a new airworthiness directive (AD) for Bell Model 427 and Model 429 helicopters. This AD requires replacing certain engine and transmission oil check valves. This AD also prohibits installing the affected check valves on any helicopter. This AD is prompted by a report of several cracked or leaking check valves. These actions are intended to detect and prevent a cracked or leaking check valve which could result in loss of lubrication to the engine or transmission, failure of the engine or transmission, and subsequent loss of control of the helicopter.

DATES:

This AD becomes effective October 17, 2016.

We must receive comments on this AD by November 29, 2016.

ADDRESSES:

You may send comments by any of the following methods:

Federal eRulemaking Docket: Go to http://www.regulations.gov. Follow the online instructions for sending your comments electronically.

Fax: 202-493-2251.

Mail: Send comments to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.

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

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-2016-9144; or in person at the Docket Operations Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the Transport Canada AD, the economic 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 service information identified in this final rule, contact Bell Helicopter Textron Canada Limited, 12,800 Rue de l'Avenir, Mirabel, Quebec J7J1R4; telephone (450) 437-2862 or (800) 363-8023; fax (450) 433-0272; or at http://www.bellcustomer.com/files/. You may review the referenced service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177.

FOR FURTHER INFORMATION CONTACT:

Rao Edupuganti, Aviation Safety Engineer, Regulations and Policy Group, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email [email protected]

SUPPLEMENTARY INFORMATION: Comments Invited

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, we invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, 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 them only one time. We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. We will consider all the comments we receive and may conduct additional rulemaking based on those comments.

Discussion

On December 7, 2015, Transport Canada issued AD No. CF-2015-29 to correct an unsafe condition for certain serial-numbered Bell Model 427 and Model 429 helicopters. Transport Canada advises that part numbered 209-062-520-001 check valves manufactured by Circor Aerospace as replacement parts have been found cracked or leaking on several helicopters. According to Transport Canada, these check valves are used in the lubrication systems of the Model 429 engines and main rotor transmission and the Model 427 engines. Finally, Transport Canada advises that loss of lubrication may cause catastrophic failure of the transmission or the engine, which could result in loss of control of the helicopter.

Transport Canada AD No. CF-2015-29 requires a one-time inspection of the transmission and engine check valves for cracks and leaks. If there is a crack or leaking fluid, the Transport Canada AD requires replacing the check valve before further flight. Otherwise, the Transport Canada AD requires replacing each check valve within 60 days for the main rotor transmission and one year for the engine with a check valve marked “TQL” as shown in the manufacturer's service bulletins. The Transport Canada AD also prohibits installing a part number (P/N) 209-062-520-001 check valve on any helicopter if the check valve was manufactured by Circor Aerospace, marked “Circle Seal,” and manufactured between October 2011 and March 2015.

FAA's Determination

These helicopters have been approved by the aviation authority of Canada and are approved for operation in the United States. Pursuant to our bilateral agreement with Canada, Transport Canada, its technical representative, has notified us of the unsafe condition described in its AD. We are issuing this AD because we evaluated all information provided by Transport Canada and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs.

Related Service Information

We reviewed Bell Alert Service Bulletin (ASB) 427-15-37 for Model 427 helicopters and Bell ASB 429-15-23 for Model 429 helicopters, both dated September 4, 2015. Both ASBs describe procedures for inspecting and replacing the check valve, P/N 209-062-520-001, installed on certain serial-numbered Model 427 and Model 429 helicopters.

AD Requirements

This AD requires, within 25 hours time-in-service (TIS), replacing the transmission and engine oil check valves.

This AD also prohibits installing a check valve P/N 209-062-520-001 that was manufactured by Circor Aerospace, marked “Circle Seal,” and marked with a manufacturing date code of “10/11” (October 2011) through “03/15” (March 2015) on any helicopter.

Differences Between This AD and the Transport Canada AD

The Transport Canada AD requires inspecting the valves for cracks and leaks to determine when they must be replaced. This AD requires replacing all check valves within 25 hours TIS.

Costs of Compliance

We estimate that this AD affects 105 (29 Model 427 and 76 Model 429) helicopters of U.S. Registry.

We estimate that operators may incur the following costs in order to comply with this AD. At an average labor rate of $85, replacing each check valve (transmission or engine) will require about 1 work-hour, and required parts will cost $85. For the Model 427, we estimate a total cost of $170 per helicopter and $4,930 for the U.S. fleet. For the Model 429, we estimate a total cost of $340 per helicopter and $25,840 for the U.S. fleet. According to Bell's service information some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage by Bell. Accordingly, we have included all costs in our cost estimate.

FAA's Justification and Determination of the Effective Date

Providing an opportunity for public comments prior to adopting these AD requirements would delay implementing the safety actions needed to correct this known unsafe condition. Therefore, we find that the risk to the flying public justifies waiving notice and comment prior to the adoption of this rule because the actions required by this AD must be accomplished within 25 hours TIS, a very short interval for helicopters used in offshore transportation.

Since an unsafe condition exists that requires the immediate adoption of this AD, we determined that notice and opportunity for public comment before issuing this AD are impracticable and that good cause exists for making this amendment effective in less than 30 days.

Authority for This Rulemaking

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

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

Regulatory Findings

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

For the reasons discussed, 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 to the extent that it justifies making a regulatory distinction; 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.

We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

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): 2016-20-01 Bell Helicopter Textron Canada Limited (Bell): Amendment 39-18667; Docket No. FAA-2016-9144; Directorate Identifier 2016-SW-014-AD. (a) Applicability

This AD applies to Bell Model 427 and 429 helicopters, certificated in any category, with an engine and transmission oil check valve part number (P/N) 209-062-520-001 manufactured by Circor Aerospace, marked “Circle Seal” and with a manufacturing date code of “10/11” (October 2011) through “03/15” (March 2015), installed.

(b) Unsafe Condition

This AD defines the unsafe condition as a cracked or leaking check valve. This condition, if not detected and corrected, could result in loss of lubrication to the engine or transmission, failure of the transmission or engine, and loss of control of the helicopter.

(c) Effective Date

This AD becomes effective October 17, 2016.

(d) Compliance

You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.

(e) Required Actions

(1) Within 25 hours time-in-service:

(i) Replace each transmission oil check valve.

(ii) For Model 429 helicopters, replace each engine oil check valve.

(2) After the effective date of this AD, do not install any check valve P/N 209-062-520-001 manufactured by Circor Aerospace, marked “Circle Seal” and with a manufacturing date code of “10/11” (October 2011) through “03/15” (March 2015), on any helicopter.

(f) Alternative Methods of Compliance (AMOCs)

(1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: Rao Edupuganti, Aviation Safety Engineer, Regulations and Policy Group, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email [email protected]

(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office, before operating any aircraft complying with this AD through an AMOC.

(g) Additional Information

(1) Bell Alert Service Bulletin (ASB) 427-15-37 for Model 427 helicopters and Bell ASB 429-15-23 for Model 429 helicopters, both dated September 4, 2015, which are not incorporated by reference, contain additional information about the subject of this final rule. For service information identified in this final rule, contact Bell Helicopter Textron Canada Limited, 12,800 Rue de l'Avenir, Mirabel, Quebec J7J1R4; telephone (450) 437-2862 or (800) 363-8023; fax (450) 433-0272; or at http://www.bellcustomer.com/files/. You may review a copy of the service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177.

(2) The subject of this AD is addressed in Transport Canada AD No. CF-2015-29, dated December 7, 2015. You may view the Transport Canada AD on the Internet at http://www.regulations.gov by searching for and locating it in Docket No. FAA-2016-9144.

(h) Subject

Joint Aircraft Service Component (JASC) Code: 6300 Engine and Transmission Lubrication System.

Issued in Fort Worth, Texas, on September 16, 2016. Scott A. Horn, Acting Manager, Rotorcraft Directorate, Aircraft Certification Service.
[FR Doc. 2016-23345 Filed 9-29-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2016-5574; Airspace Docket No. 16-AWP-5] Modification of Class E Airspace; Napa, CA AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This action modifies the Class E airspace extending upward from 700 feet above the surface at Napa County Airport, Napa, CA, by removing an irregular shaped area located approximately 20 miles southwest of Napa County Airport. This airspace area is discontinuous from the airspace surrounding Napa County Airport and is not essential to instrument flight rules (IFR) operations at the airport. This action also updates the airport's geographic coordinates, and is necessary for the safety and management of instrument flight rules (IFR) operations at the airport, with the minimum amount of airspace restriction.

DATES:

Effective 0901 UTC, January 5, 2017. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11A and publication of conforming amendments.

ADDRESSES:

FAA Order 7400.11A, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at http://www.faa.gov/air_traffic/publications/. For further information, you can contact the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Bldg. Ground Floor, Rm. W12-140, Washington, DC 20590; Telephone: 1-800-647-5527, or 202-366-9826. The Order is also available for inspection at the National Archives and Records Administration (NARA). For information on the availability of FAA Order 7400.11A at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal-regulations/ibr_locations.html.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

FOR FURTHER INFORMATION CONTACT:

Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4511.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

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

History

On July 19, 2016, the FAA published in the Federal Register a notice of proposed rulemaking (NPRM) to modify Class E airspace extending upward from 700 feet above the surface at Napa County Airport, Napa, CA (81 FR 46850) Docket FAA-2016-5574. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

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

Availability and Summary of Documents for Incorporation by Reference

This document amends FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016. FAA Order 7400.11A is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11A lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The Rule

This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 modifies Class E airspace extending upward from 700 feet above the surface at Napa County Airport, Napa, CA, by removing an irregular shaped area located approximately 20 miles southwest of the airport. This airspace area is discontinuous from the airspace surrounding Napa County Airport and is not necessary to support IFR operations. This action also updates the airport geographic coordinates to Lat. 38°12′48″ N., Long. 122°16′51″ W., to coincide with the FAA's aeronautical database.

Regulatory Notices and Analyses

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a Regulatory Evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Environmental Review

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

Lists of Subjects in 14 CFR Part 71

Airspace, Incorporation by reference, Navigation (air).

Adoption of the Amendment

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

PART 71—DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR TRAFFIC SERVICE ROUTES; AND REPORTING POINTS 1. The authority citation for part 71 continues to read as follows: Authority:

49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

§ 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11A, Airspace Designations and Reporting Points, dated August 3, 2016, and effective September 15, 2016, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. AWP CA E5 Napa, CA [Modified] Napa County Airport, CA (Lat. 38°12′48″ N., long. 122°16′51″ W.)

That airspace extending upward from 700 feet above the surface within a 6.5 mile radius of Napa County Airport.

Issued in Seattle, Washington, on September 21, 2016. Tracey Johnson, Manager, Operations Support Group, Western Service Center.
[FR Doc. 2016-23423 Filed 9-29-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 31094; Amdt. No. 3711] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.

DATES:

This rule is effective September 30, 2016. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.

The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of September 30, 2016.

ADDRESSES:

Availability of matters incorporated by reference in the amendment is as follows:

For Examination

1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590-0001.

2. The FAA Air Traffic Organization Service Area in which the affected airport is located;

3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,

4. 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.

Availability

All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at nfdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from the FAA Air Traffic Organization Service Area in which the affected airport is located.

FOR FURTHER INFORMATION CONTACT:

Thomas J. Nichols, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954-4164.

SUPPLEMENTARY INFORMATION:

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

Availability and Summary of Material Incorporated by Reference

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.

The Rule

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 97

Air traffic control, Airports, Incorporation by reference, Navigation (air).

Issued in Washington, DC, on August 26, 2016. John S. Duncan, Director, Flight Standards Service. Adoption of the Amendment

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority:

49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.

2. Part 97 is amended to read as follows: Effective 13 October 2016 Melbourne, AR, Melbourne Muni—John E Miller Field, RNAV (GPS) RWY 3, Amdt 2 Melbourne, AR, Melbourne Muni—John E Miller Field, RNAV (GPS) RWY 21, Amdt 2 Oakland, CA, Metropolitan Oakland Intl, ILS OR LOC RWY 30, ILS RWY 30 (SA CAT I), ILS RWY 30 (CATII), ILS RWY 30 (CAT III), Amdt 29A Oakland, CA, Metropolitan Oakland Intl, ILS OR LOC/DME RWY 28R, Amdt 37A Tampa, FL, Peter O Knight, RNAV (GPS) RWY 36, Amdt 2D Cordele, GA, Crisp County—Cordele, LOC RWY 10, Orig-D Washington, GA, Washington-Wilkes County, RNAV (GPS) RWY 13, Amdt 1A Effective 10 November 2016 Chalkyitsik, AK, Chalkyitsik, Takeoff Minimums and Obstacle DP, Amdt 1 Chevak, AK, Chevak, Takeoff Minimums and Obstacle DP, Amdt 1 Kotlik, AK, Kotlik, Takeoff Minimums and Obstacle DP, Amdt 1 Russian Mission, AK, Russian Mission, Takeoff Minimums and Obstacle DP, Amdt 2 Danville, AR, Danville Muni, RNAV (GPS) RWY 11, Orig Danville, AR, Danville Muni, RNAV (GPS) RWY 29, Orig Danville, AR, Danville Muni, Takeoff Minimums and Obstacle DP, Orig Phoenix, AZ, Phoenix-Mesa Gateway, RNAV (GPS) RWY 12C, Amdt 1B Camarillo, CA, Camarillo, Takeoff Minimums and Obstacle DP, Amdt 4 Colusa, CA, Colusa County, Takeoff Minimums and Obstacle DP, Orig-A Fallbrook, CA, Fallbrook Community Airpark, FALLBROOK ONE Graphic DP Fallbrook, CA, Fallbrook Community Airpark, Takeoff Minimums and Obstacle DP, Amdt 1 Fresno, CA, Fresno Chandler Executive, NDB OR GPS-B, Amdt 7C, CANCELED Hemet, CA, Hemet-Ryan, Takeoff Minimums and Obstacle DP, Amdt 3 Los Angeles, CA, Los Angeles Intl, Takeoff Minimums and Obstacle DP, Amdt 13 Denver, CO, Denver Intl, RNAV (GPS) Y RWY 16L, Amdt 1B Montrose, CO, Montrose Rgnl, ILS OR LOC/DME RWY 17, Amdt 2D Montrose, CO, Montrose Rgnl, RNAV (GPS) RWY 13, Orig-C Montrose, CO, Montrose Rgnl, RNAV (GPS) RWY 35, Orig-C Montrose, CO, Montrose Rgnl, RNAV (GPS) Y RWY 17, Orig-C Montrose, CO, Montrose Rgnl, RNAV (GPS) Z RWY 17, Orig-C Montrose, CO, Montrose Rgnl, VOR RWY 13, Amdt 9C Telluride, CO, Telluride Rgnl, LOC RWY 9, Amdt 3A Tinian Island, CQ, Tinian Intl, NDB-A, Amdt 3 Greensboro, GA, Greene County Rgnl, RNAV (GPS) RWY 25, Amdt 2 Greensboro, GA, Greene County Rgnl, VOR-B, Amdt 3 Monticello, IN, White County, RNAV (GPS) RWY 18, Amdt 1 Monticello, IN, White County, RNAV (GPS) RWY 36, Amdt 1 Monticello, IN, White County, Takeoff Minimums and Obstacle DP, Amdt 3 Hopkinsville, KY, Hopkinsville-Christian County, LOC RWY 26, Amdt 4, CANCELED Hopkinsville, KY, Hopkinsville-Christian County, NDB RWY 26, Amdt 7, CANCELED Hyannis, MA, Barnstable Muni-Boardman/Polando Field, VOR RWY 6, Amdt 10 Plymouth, MA, Plymouth Muni, RNAV (GPS) RWY 15, Orig Butte, MT, Bert Mooney, VOR OR GPS-B, Amdt 1C Great Falls, MT, Great Falls Intl, GPS RWY 34, Orig, CANCELED Falls City, NE, Brenner Field, NDB-A, Amdt 3C, CANCELED Astoria, OR, Astoria Rgnl, ASTORIA TWO Graphic DP Astoria, OR, Astoria Rgnl, Takeoff Minimums and Obstacle DP, Amdt 6 Corvallis, OR, Corvallis Muni, ILS OR LOC RWY 17, Amdt 4 Corvallis, OR, Corvallis Muni, RNAV (GPS) RWY 17, Amdt 1 Corvallis, OR, Corvallis Muni, Takeoff Minimums and Obstacle DP, Amdt 6A Hermiston, OR, Hermiston Muni, Takeoff Minimums and Obstacle DP, Orig-A Paris, TN, Henry County, NDB RWY 2, Amdt 3, CANCELED Waynesboro, VA, Eagle's Nest, RNAV (GPS) RWY 6, Amdt 1 Waynesboro, VA, Eagle's Nest, RNAV (GPS) RWY 24, Amdt 1 Ellensburg, WA, Bowers Field, RNAV (GPS) RWY 25, Amdt 1A Ellensburg, WA, Bowers Field, RNAV (GPS)-C, Orig-C Ellensburg, WA, Bowers Field, VOR-B, Amdt 3C Ellensburg, WA, Bowers Field, VOR/DME-A, Amdt 3A Oak Harbor, WA, A J Eisenberg, RADAR-1, CANCELED Wenatchee, WA, Pangborn Memorial, Takeoff Minimums and Obstacle DP, Amdt 5 Wenatchee, WA, Pangborn Memorial, WENATCHEE ONE Graphic DP Pulaski, WI, Carter, VOR OR GPS-A, Amdt 4, CANCELED Big Piney, WY, Miley Memorial Field, RNAV (GPS) RWY 31, Orig-C Gillette, WY, Gillette-Campbell County, ILS OR LOC RWY 34, Amdt 4 Gillette, WY, Gillette-Campbell County, RNAV (GPS) RWY 16, Orig-A Gillette, WY, Gillette-Campbell County, RNAV (GPS) RWY 34, Orig-A Gillette, WY, Gillette-Campbell County, Takeoff Minimums and Obstacle DP, Amdt 5 Gillette, WY, Gillette-Campbell County, VOR RWY 16, Orig-A Gillette, WY, Gillette-Campbell County, VOR/DME RWY 34, Amdt 1, CANCELED

RESCINDED: On August 4, 2016 (81 FR 51339), the FAA published an Amendment in Docket No. 31085, Amdt No. 3703 to Part 97 of the Federal Aviation Regulations under section 97.33. The following entry, effective September 15, 2016, is hereby rescinded in its entirety:

Fort Myers, FL, Southwest Florida Intl, RNAV (GPS) RWY 6, Amdt 2

RESCINDED: On August 25, 2016 (81 FR 58387), the FAA published an Amendment in Docket No. 31089, Amdt No. 3707 to Part 97 of the Federal Aviation Regulations under section 97.33, 97.23. The following entries, effective September 15, 2016, are hereby rescinded in their entirety:

Clinton, OK, Clinton Rgnl, RNAV (GPS) RWY 17, Amdt 3 Clinton, OK, Clinton Rgnl, RNAV (GPS) RWY 35, Amdt 4 Clinton, OK, Clinton Rgnl, VOR/DME-A, Orig, CANCELED Elk City, OK, Elk City Rgnl Business, RNAV (GPS) RWY 17, Amdt 2 Elk City, OK, Elk City Rgnl Business, RNAV (GPS) RWY 35, Amdt 2 Weatherford, OK, Thomas P Stafford, RNAV (GPS) RWY 35, Amdt 3 Canadian, TX, Hemphill County, RNAV (GPS) RWY 4, Amdt 2 Wheeler, TX, Wheeler Muni, RNAV (GPS) RWY 17, Orig-A, CANCELED Wheeler, TX, Wheeler Muni, RNAV (GPS) RWY 35, Orig-A, CANCELED Wheeler, TX, Wheeler Muni, RNAV (GPS)-A, Orig Wheeler, TX, Wheeler Muni, RNAV (GPS)-B, Orig Wheeler, TX, Wheeler Muni, VOR/DME-A, Amdt 2, CANCELED
[FR Doc. 2016-23406 Filed 9-29-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 31095; Amdt. No. 3712] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide for the safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.

DATES:

This rule is effective September 30, 2016. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.

The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of September 30, 2016.

ADDRESSES:

Availability of matter incorporated by reference in the amendment is as follows:

For Examination

1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC, 20590-0001;

2. The FAA Air Traffic Organization Service Area in which the affected airport is located;

3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,

4. 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.

Availability

All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center online at nfdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from the FAA Air Traffic Organization Service Area in which the affected airport is located.

FOR FURTHER INFORMATION CONTACT:

Thomas J. Nichols, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) telephone: (405) 954-4164.

SUPPLEMENTARY INFORMATION:

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary.

This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

Availability and Summary of Material Incorporated by Reference

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

The Rule

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 97

Air traffic control, Airports, Incorporation by reference, Navigation (air).

Issued in Washington, DC, on August 26, 2016. John S. Duncan, Director, Flight Standards Service. Adoption of the Amendment

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority:

49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.

§§ 97.23, 97.25, 97.27, 97.29, 97.31, 97.33, 97.35 [Amended]
2. Part 97 is amended to read as follows:

By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:

* * * Effective Upon Publication AIRAC date State City Airport FDC No. FDC date Subject 13-Oct-16 CA San Francisco San Francisco Intl 6/0046 8/15/16 RNAV (GPS) X RWY 28R, Amdt 1A. 13-Oct-16 CA San Francisco San Francisco Intl 6/0047 8/15/16 RNAV (GPS) PRM X RWY 28R (SIMULTANEOUS CLOSE PARALLEL), Amdt 1A. 13-Oct-16 CA San Francisco San Francisco Intl 6/0048 8/15/16 LDA PRM RWY 28R (SIMULTANEOUS CLOSE PARALLEL), Amdt 2A. 13-Oct-16 CA San Francisco San Francisco Intl 6/0049 8/15/16 LDA/DME RWY 28R, Amdt 2A. 13-Oct-16 CA San Francisco San Francisco Intl 6/0050 8/15/16 ILS OR LOC RWY 28R, ILS RWY 28R (SA CAT I), ILS RWY 28R (CAT II-III), Amdt 13A. 13-Oct-16 TX Perryton Perryton Ochiltree County 6/0457 8/11/16 RNAV (GPS) RWY 17, Orig-A. 13-Oct-16 TX Perryton Perryton Ochiltree County 6/0458 8/11/16 RNAV (GPS) RWY 35, Amdt 1A. 13-Oct-16 TX Perryton Perryton Ochiltree County 6/0459 8/11/16 NDB-A, Amdt 4A. 13-Oct-16 WI Minocqua-Woodruff Lakeland/Noble F Lee Memorial Field 6/0534 8/23/16 RNAV (GPS) RWY 18, Orig. 13-Oct-16 NM Grants Grants-Milan Muni 6/1350 8/15/16 RNAV (GPS) RWY 13, Orig. 13-Oct-16 ND Rugby Rugby Muni 6/2712 8/15/16 RNAV (GPS) RWY 30, Orig-A. 13-Oct-16 ND Rugby Rugby Muni 6/2714 8/15/16 RNAV (GPS) RWY 12, Orig-A. 13-Oct-16 MI Gaylord Gaylord Rgnl 6/2719 8/11/16 RNAV (GPS) RWY 9, Orig-A. 13-Oct-16 MI Gaylord Gaylord Rgnl 6/2720 8/11/16 RNAV (GPS) RWY 27, Orig-A. 13-Oct-16 OK Oklahoma City Will Rogers World 6/3132 8/15/16 RNAV (GPS) Y RWY 17L, Amdt 3A. 13-Oct-16 LA Alexandria Alexandria Intl 6/3303 8/23/16 VOR/DME RWY 14, Orig-B. 13-Oct-16 OK Idabel Mc Curtain County Rgnl 6/3469 8/15/16 RNAV (GPS) RWY 20, Orig. 13-Oct-16 MO Mexico Mexico Memorial 6/3471 8/15/16 RNAV (GPS) RWY 24, Amdt 1C. 13-Oct-16 IN French Lick French Lick Muni 6/3700 8/23/16 RNAV (GPS) RWY 26, Orig-A. 13-Oct-16 IN French Lick French Lick Muni 6/3701 8/23/16 RNAV (GPS) RWY 8, Amdt 1A. 13-Oct-16 WV Clarksburg North Central West Virginia 6/5614 8/11/16 VOR-A, Amdt 1. 13-Oct-16 MI Owosso Owosso Community 6/5851 8/19/16 RNAV (GPS) RWY 11, Amdt 1B. 13-Oct-16 MI Owosso Owosso Community 6/5852 8/19/16 RNAV (GPS) RWY 29, Amdt 1B. 13-Oct-16 MI Owosso Owosso Community 6/5854 8/19/16 VOR/DME RWY 29, Amdt 1B. 13-Oct-16 IN Lafayette Purdue University 6/6114 8/19/16 ILS RWY 10, Amdt 11. 13-Oct-16 IN Lafayette Purdue University 6/6115 8/19/16 RNAV (GPS) RWY 10, Amdt 1. 13-Oct-16 IN Lafayette Purdue University 6/6116 8/19/16 VOR-A, Amdt 26. 13-Oct-16 IN Lafayette Purdue University 6/6117 8/19/16 RNAV (GPS) RWY 28, Amdt 1. 13-Oct-16 WI Land O' Lakes Kings Land O' Lakes 6/7434 8/22/16 RNAV (GPS) RWY 32, Orig. 13-Oct-16 WI Land O' Lakes Kings Land O' Lakes 6/7435 8/22/16 RNAV (GPS) RWY 14, Orig. 13-Oct-16 IL Cahokia/St Louis St Louis Downtown 6/7439 8/19/16 RNAV (GPS) RWY 30R, Orig-A. 13-Oct-16 KS Goodland Renner Fld/Goodland Muni/ 6/7987 8/19/16 ILS OR LOC RWY 30, Amdt 2A. 13-Oct-16 KS Goodland Renner Fld/Goodland Muni/ 6/7988 8/19/16 RNAV (GPS) RWY 12, Amdt 2. 13-Oct-16 KS Goodland Renner Fld/Goodland Muni/ 6/7989 8/19/16 RNAV (GPS) RWY 30, Amdt 1A. 13-Oct-16 KS Goodland Renner Fld/Goodland Muni/ 6/7990 8/19/16 VOR RWY 30, Amdt 9A. 13-Oct-16 KS Goodland Renner Fld/Goodland Muni/ 6/7991 8/19/16 RNAV (GPS) RWY 23, Amdt 1A. 13-Oct-16 TX La Porte La Porte Muni 6/7997 8/19/16 RNAV (GPS) RWY 30, Amdt 2A. 13-Oct-16 MN Duluth Duluth Intl 6/8581 8/19/16 ILS OR LOC RWY 27, Amdt 10A. 13-Oct-16 IL Bloomington/Normal Central Il Rgnl Arpt At Bloomington-Normal 6/8584 8/22/16 ILS OR LOC RWY 29, Amdt 11. 13-Oct-16 DE Georgetown Delaware Coastal 6/8745 8/11/16 RNAV (GPS) RWY 22, Amdt 2B. 13-Oct-16 DE Georgetown Delaware Coastal 6/8746 8/11/16 VOR RWY 22, Amdt 7A. 13-Oct-16 MI Gaylord Gaylord Rgnl 6/8956 8/11/16 VOR RWY 27, Amdt 2A. 13-Oct-16 FL Miami Miami Intl 6/9444 8/15/16 RNAV (RNP) Y RWY 27, Amdt 2. 13-Oct-16 KY Louisville Louisville Intl-Standiford Field 6/9490 8/11/16 RNAV (RNP) Z RWY 35L, Amdt 1B.
[FR Doc. 2016-23410 Filed 9-29-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 31097; Amdt. No. 3714] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide for the safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.

DATES:

This rule is effective September 30, 2016. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.

The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of September 30, 2016.

ADDRESSES:

Availability of matter incorporated by reference in the amendment is as follows:

For Examination

1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590-0001;

2. The FAA Air Traffic Organization Service Area in which the affected airport is located;

3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,

4. 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.

Availability

All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center online at nfdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from the FAA Air Traffic Organization Service Area in which the affected airport is located.

FOR FURTHER INFORMATION CONTACT:

Thomas J. Nichols, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) telephone: (405) 954-4164.

SUPPLEMENTARY INFORMATION:

This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary.

This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

Availability and Summary of Material Incorporated by Reference

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

The Rule

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 97

Air traffic control, Airports, Incorporation by reference, Navigation (air).

Issued in Washington, DC, on September 9, 2016. John S. Duncan, Director, Flight Standards Service. Adoption of the Amendment

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority:

49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.

§§ 97.23, 97.25, 97.27, 97.29, 97.31, 97.33, 97.35 [Amended]
2. Part 97 is amended to read as follows:

By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:

* * * Effective Upon Publication AIRAC date State City Airport FDC No. FDC Date Subject 13-Oct-16 NC Mount Olive Mount Olive Muni 6/0392 8/26/16 RNAV (GPS) RWY 5, Orig. 13-Oct-16 NC Mount Olive Mount Olive Muni 6/0428 8/26/16 RNAV (GPS) RWY 23, Orig-A. 13-Oct-16 IN Evansville Evansville Rgnl 6/0540 8/30/16 ILS OR LOC RWY 4, Amdt 3. 13-Oct-16 IN Evansville Evansville Rgnl 6/0543 8/30/16 ILS OR LOC RWY 22, Amdt 22. 13-Oct-16 IN Evansville Evansville Rgnl 6/0545 8/30/16 NDB RWY 22, Amdt 14. 13-Oct-16 IN Evansville Evansville Rgnl 6/0546 8/30/16 RNAV (GPS) RWY 18, Amdt 2. 13-Oct-16 IN Evansville Evansville Rgnl 6/0547 8/30/16 RNAV (GPS) RWY 22, Amdt 1. 13-Oct-16 IN Evansville Evansville Rgnl 6/0550 8/30/16 RNAV (GPS) RWY 36, Amdt 2. 13-Oct-16 IN Evansville Evansville Rgnl 6/0551 8/30/16 RNAV (GPS) RWY 4, Amdt 1. 13-Oct-16 PA Mount Pocono Pocono Mountains Muni 6/1142 8/26/16 RNAV (GPS) RWY 5, Orig-A. 13-Oct-16 PA Mount Pocono Pocono Mountains Muni 6/1143 8/26/16 VOR/DME RWY 13, Amdt 8A. 13-Oct-16 FL Miami Miami Executive 6/3008 8/26/16 ILS OR LOC RWY 9R, Amdt 11A. 13-Oct-16 FL Miami Miami Executive 6/3009 8/26/16 RNAV (GPS) RWY 27L, Amdt 2A. 13-Oct-16 FL Miami Miami Executive 6/3010 8/26/16 RNAV (GPS) RWY 27R, Orig-A. 13-Oct-16 FL Miami Miami Executive 6/3011 8/26/16 RNAV (GPS) RWY 9L, Orig-B. 13-Oct-16 FL Miami Miami Executive 6/3012 8/26/16 RNAV (GPS) RWY 9R, Amdt 2A. 13-Oct-16 TX Brownsville Brownsville/South Padre Island Intl 6/3466 8/30/16 Takeoff Minimums and Obstacle DP, Orig. 13-Oct-16 TX Brownsville Brownsville/South Padre Island Intl 6/3467 8/30/16 VOR OR TACAN-A, Amdt 1B. 13-Oct-16 IL Chicago/Rockford Chicago/Rockford Intl 6/3693 8/26/16 ILS OR LOC RWY 7, ILS RWY 7 (SA CAT I), ILS RWY 7 (CAT II & III), Amdt 1C. 13-Oct-16 OK Oklahoma City Will Rogers World 6/4501 8/30/16 RNAV (GPS) RWY 31, Amdt 1A. 13-Oct-16 NY Le Roy Le Roy 6/5296 8/26/16 RNAV (GPS) RWY 28, Orig-A. 13-Oct-16 NY Le Roy Le Roy 6/5297 8/26/16 VOR-A, Amdt 1A. 13-Oct-16 NY Le Roy Le Roy 6/5298 8/26/16 RNAV (GPS) RWY 10, Orig-A. 13-Oct-16 OK Oklahoma City Will Rogers World 6/6066 8/25/16 RADAR 1, Amdt 21. 13-Oct-16 ME Bangor Bangor Intl 6/9055 8/26/16 RADAR 1, Amdt 4D.
[FR Doc. 2016-23414 Filed 9-29-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 31096; Amdt. No. 3713] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.

DATES:

This rule is effective September 30, 2016. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.

The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of September 30, 2016.

ADDRESSES:

Availability of matters incorporated by reference in the amendment is as follows:

For Examination

1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590-0001.

2. The FAA Air Traffic Organization Service Area in which the affected airport is located;

3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,

4. 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.

Availability

All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at nfdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from the FAA Air Traffic Organization Service Area in which the affected airport is located.

FOR FURTHER INFORMATION CONTACT:

Thomas J. Nichols, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954-4164.

SUPPLEMENTARY INFORMATION:

This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

Availability and Summary of Material Incorporated by Reference

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.

The Rule

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 97

Air traffic control, Airports, Incorporation by reference, Navigation (air).

Issued in Washington, DC, on September 9, 2016. John S. Duncan, Director, Flight Standards Service. Adoption of the Amendment

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority:

49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.

2. Part 97 is amended to read as follows: Effective 10 November 2016 Gulkana, AK, Gulkana, Takeoff Minimums and Obstacle DP, Amdt 7A Napakiak, AK, Napakiak, RNAV (GPS) RWY 16, Orig-A Napakiak, AK, Napakiak, RNAV (GPS) RWY 34, Orig-A Scammon Bay, AK, Scammon Bay, RNAV (GPS)-B, Orig-A Camden, AR, Harrell Field, VOR/DME RWY 1, Amdt 10B Groveland, CA, Pine Mountain Lake, Takeoff Minimums and Obstacle DP, Amdt 1 Lodi, CA, Lodi, Takeoff Minimums and Obstacle DP, Amdt 2A Lodi, CA, Lodi, VOR-A, Amdt 3A Oakdale, CA, Oakdale, Takeoff Minimums and Obstacle DP, Amdt 1 Stockton, CA, Stockton Metropolitan, ILS OR LOC RWY 29R, Amdt 20B Stockton, CA, Stockton Metropolitan, VOR RWY 29R, Amdt 18E, CANCELED Tampa, FL, Tampa Executive, RNAV (GPS) RWY 5, Orig-C Macon, GA, Middle Georgia Rgnl, ILS OR LOC RWY 5, Amdt 2 Macon, GA, Middle Georgia Rgnl, RNAV (GPS) RWY 5, Amdt 2 Macon, GA, Middle Georgia Rgnl, RNAV (GPS) RWY 14, Amdt 2D Macon, GA, Middle Georgia Rgnl, RNAV (GPS) RWY 23, Amdt 2D Macon, GA, Middle Georgia Rgnl, RNAV (GPS) RWY 32, Amdt 1D Macon, GA, Middle Georgia Rgnl, VOR RWY 14, Amdt 10C Macon, GA, Middle Georgia Rgnl, VOR RWY 23, Amdt 4D Macon, GA, Middle Georgia Rgnl, Takeoff Minimums and Obstacle DP, Amdt 3B Beverly, MA, Beverly Rgnl, RNAV (GPS) RWY 9, Orig Beverly, MA, Beverly Rgnl, RNAV (GPS) RWY 27, Amdt 1 Beverly, MA, Beverly Rgnl, RNAV (GPS) RWY 34, Orig-D Brunswick, ME, Brunswick Executive, ILS OR LOC RWY 1R, Amdt 1 Brunswick, ME, Brunswick Executive, RNAV (GPS) RWY 1R, Amdt 2 Shamokin, PA, Northumberland County, Takeoff Minimums and Obstacle DP, Amdt 2 State College, PA, University Park, ILS OR LOC RWY 24, Amdt 9B State College, PA, University Park, RNAV (GPS) RWY 6, Amdt 2 State College, PA, University Park, RNAV (GPS) RWY 24, Amdt 1 Zelienople, PA, Zelienople Muni, RNAV (GPS) RWY 17, Amdt 1 Zelienople, PA, Zelienople Muni, RNAV (GPS) RWY 35, Amdt 1 Pulaski, WI, Carter, Takeoff Minimums and Obstacle DP, Orig, CANCELED
[FR Doc. 2016-23411 Filed 9-29-16; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 15 CFR Part 902 50 CFR Part 679 [Docket No. 160225146-6851-02] RIN 0648-BF80 Fisheries of the Exclusive Economic Zone Off Alaska; Observer Coverage Requirements for Bering Sea and Aleutian Islands Management Area Trawl Catcher Vessels AGENCY:

National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

ACTION:

Final rule.

SUMMARY:

NMFS issues regulations to modify observer coverage requirements for catcher vessels participating in the trawl limited access fisheries in the Bering Sea and Aleutian Islands management area (BSAI). This final rule allows the owner of a trawl catcher vessel to request, on an annual basis, that NMFS place the vessel in the full observer coverage category for all directed fishing for groundfish using trawl gear in the BSAI in the following calendar year. These regulations are necessary to relieve vessel owners who request full observer coverage of the reporting requirements and observer fee liability associated with the partial observer coverage category. Additionally, this final rule makes minor technical corrections to observer program regulations. This final rule is intended to promote the goals and objectives of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI FMP), and other applicable laws.

DATES:

Effective October 31, 2016.

ADDRESSES:

Electronic copies of the Regulatory Impact Review (RIR), the Initial Regulatory Flexibility Analysis (IRFA), and the Categorical Exclusion prepared for this action are available from www.regulations.gov (search NOAA-NMFS-2016-0020) or from the NMFS Alaska Region Web site at alaskafisheries.noaa.gov.

Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this rule may be submitted by mail to NMFS Alaska Region, P.O. Box 21668, Juneau, AK 99802-1668, Attn: Ellen Sebastian, Records Officer; in person at NMFS Alaska Region, 709 West 9th Street, Room 420A, Juneau, AK; by email to [email protected]; or by fax to 202-395-5806.

FOR FURTHER INFORMATION CONTACT:

Alicia M. Miller, 907-586-7228.

SUPPLEMENTARY INFORMATION:

Background

NMFS published a proposed rule to modify observer coverage requirements for catcher vessels participating in the trawl limited access fisheries in the BSAI on July 7, 2016 (81 FR 44251). The comment period on the proposed rule ended on August 8, 2016. Following is a brief description of the North Pacific Groundfish and Halibut Observer Program (Observer Program) and elements of the Observer Program impacted by this final rule. The preamble of the proposed rule (81 FR 44251, July 7, 2016) provides a more detailed description of the Observer Program and this action.

The Observer Program

Regulations implementing the Observer Program require observer coverage on fishing vessels and at processing plants to allow NMFS-certified observers (observers) to obtain information necessary for the conservation and management of the BSAI and Gulf of Alaska groundfish and halibut fisheries. The Observer Program was implemented in 1990 (55 FR 4839, February 12, 1990). In 2013, NMFS restructured the funding and deployment systems of the Observer Program (77 FR 70062, November 21, 2012). Under the restructured Observer Program, all vessels and processors in the groundfish and halibut fisheries off Alaska are placed into one of two categories: (1) The full observer coverage category, where vessels and processors obtain observer coverage by contracting directly with observer providers; and (2) the partial observer coverage category, where NMFS has the flexibility to deploy observers when and where they are needed, as described in the annual deployment plan that is developed by NMFS in consultation with the North Pacific Fishery Management Council (Council). NMFS funds observer deployment in the partial observer coverage category by assessing a 1.25 percent fee on the ex-vessel value of retained groundfish and halibut from vessels that are not in the full observer coverage category.

Regulations implementing the restructured Observer Program in 2013 placed all trawl catcher vessels in the full observer coverage category when participating in a catch share program with transferable prohibited species catch (PSC) limits. For trawl catcher vessels in the BSAI, the catch share programs with transferable PSC limits are the American Fisheries Act (AFA) pollock fisheries in the Bering Sea and the Western Alaska Community Development Quota (CDQ) groundfish fisheries. All other trawl catcher vessels subject to observer coverage requirements in the BSAI are in the partial observer coverage category when participating in the BSAI trawl limited access fisheries.

Throughout this final rule, the trawl fisheries in the BSAI that are not part of a catch share program with transferable PSC limits are referred to collectively as “the BSAI trawl limited access fisheries.” Vessels participating in the BSAI trawl limited access fisheries primarily target Pacific cod or yellowfin sole. The BSAI trawl limited access fisheries are managed with halibut and crab PSC limits that apply to the directed fishery as a whole or to operational category and gear type. Section 3.5 in the RIR provides additional information about the BSAI trawl limited access fisheries, the Observer Program, and observer coverage categories.

Need for This Final Rule

Since 2013, for reasons detailed in the proposed rule for this action (81 FR 44251, July 7, 2016), NMFS has implemented an interim policy that allows an owner of a BSAI trawl catcher vessel to request, on an annual basis, placement in the full observer coverage category by submitting a letter of request to NMFS. Under the interim policy, the owner of a trawl catcher vessel complies with full observer coverage requirements but is not placed in the full observer coverage category by regulation. Therefore, the owner must continue to comply with the partial observer coverage category reporting requirements and associated observer fee liability. This results in the vessel owner paying costs for partial and full observer coverage and additional reporting requirements for those vessel owners that have requested full observer coverage under the interim policy. This final rule replaces the interim policy and establishes in regulation a process for the owner of a trawl catcher vessel to request placement in the full observer coverage category.

The major provisions of this final rule are summarized below. Additional detail about the rationale for the major provisions is found in the proposed rule for this action (81 FR 44251, July 7, 2016) and Sections 3.6 and 3.7 of the RIR.

1. Annual Request for Full Observer Coverage

This final rule allows the owner of a trawl catcher vessel to annually request full observer coverage in lieu of partial observer coverage for directed fishing for groundfish using trawl gear in the BSAI in the following year. This final rule establishes a regulatory process to allow the owner of a trawl catcher vessel to submit a request for full observer coverage to NMFS. NMFS will then place the vessel in the full observer coverage category for all directed fishing for groundfish using trawl gear in the BSAI in the following year.

This final rule does not restrict which trawl catcher vessel owners may request full observer coverage, allowing the owner of any trawl catcher vessel to request full observer coverage for all directed fishing for groundfish using trawl gear in the BSAI in the following year. This final rule does not alter existing observer coverage requirements for trawl catcher vessels delivering unsorted codends to a mothership in the BSAI.

2. Annual Deadline

This final rule establishes an annual deadline of October 15 for a trawl catcher vessel owner to request placement in the full observer coverage category for the following year.

This Final Rule

This final rule revises regulations at 50 CFR part 679 to establish a process to allow the owner of a trawl catcher vessel to request, on an annual basis, that NMFS place the vessel in the full observer coverage category for all directed fishing for groundfish using trawl gear in the BSAI in the following calendar year. This final rule adds a paragraph at § 679.51(a)(2)(i)(C)(4) describing a new vessel type under the list of catcher vessels in the full observer coverage category to allow this annual request for placement in the full observer coverage category for one year. This final rule adds a new paragraph at § 679.51(a)(4) to describe the requirements for this annual process.

The owner of a trawl catcher vessel that requests full observer coverage in lieu of partial observer coverage for all directed fishing for groundfish in the BSAI trawl limited access fisheries in the following year will submit the request to NMFS using the Observer Declare and Deploy System (ODDS), which is described at § 679.51(a)(1)(ii). Once a request is received, NMFS will consider the request and will notify the vessel owner whether the request is approved or denied. This notification will occur through ODDS. Once NMFS has notified the vessel owner that a request to be placed in the full observer coverage category for the following year is approved, the owner and operator of the trawl catcher vessel are subject to full observer coverage requirements as described at § 679.51(a)(2) for all directed fishing for groundfish using trawl gear in the BSAI in the following year. Once approved by NMFS for placement in the full observer coverage category, a trawl catcher vessel cannot be placed in the partial observer coverage category until the next year. Until NMFS provides notification of approval, a catcher vessel remains in the partial observer coverage category as described at § 679.51(a)(1)(i).

The owner of a trawl catcher vessel placed in the full observer coverage category contracts directly with a permitted full coverage observer provider to procure observer services as described at § 679.51(d). The owner of a trawl catcher vessel in the full observer coverage category is not required to log fishing trips in ODDS under § 679.51(a)(1), and landings made by a vessel in the full observer coverage category are not subject to the 1.25 percent partial observer coverage fee under § 679.55.

This final rule establishes an annual deadline of October 15 for a trawl catcher vessel owner to request that a trawl catcher vessel operating in the BSAI be placed in the full observer coverage category for the following year as described at § 679.51(a)(4)(iii). NMFS will approve all requests that contain the information required by ODDS submitted on or before October 15. If NMFS denies a request to place a catcher vessel in the full observer coverage category, the catcher vessel will remain in the partial observer coverage category as described at § 679.51(a)(1)(i).

This final rule specifies at § 679.51(a)(4)(v) that if NMFS denies a request for placement in the full observer coverage category, NMFS will issue an Initial Administrative Determination, which will explain in writing the reasons for the denial. Under § 679.51(a)(4)(vi), the vessel owner can appeal a denial to the National Appeals Office according to the procedures in 15 CFR part 906.

This final rule makes minor technical corrections to Observer Program regulations, and corrects inaccurate cross references in § 679.84 and § 679.93 to observer coverage requirements in § 679.51. This final rule also standardizes references to the observer sampling station and the Observer Sampling Manual throughout part 679, and updates check-in/check-out report submission methods by removing a discontinued email address in § 679.5.

Comments and Responses

During the comment period for the proposed rule, NMFS received two letters of comment from two individuals, each letter containing two substantive comments. NMFS' responses to these comments are presented below.

Comment 1: Both commenters expressed support for this action, noting that the vessels they represent will be positively impacted by this action and that the proposed rule is consistent with changes requested by industry in 2012, as well as the recommendations made by the Council in February 2016.

Response: NMFS acknowledges this comment.

Comment 2: Both commenters support all provisions of the final rule as proposed, and request the action be implemented as soon as possible.

Response: NMFS acknowledges this comment. To ensure this action is effective and allow at least 15 days for vessel owners to submit a full observer coverage request for the 2017 calendar year, an implementation year deadline has been added to this final rule as described in the following section.

Changes From the Proposed Rule

This final rule includes changes to the regulatory text published in the proposed rule. These changes are necessary to define an initial implementation deadline for the 2017 calendar year and to make a minor editorial correction to existing regulatory text that was inadvertently altered in the proposed rule.

Initial Implementation Deadline for 2017

The proposed rule for this action (81 FR 44251, July 7, 2016) proposed an annual deadline of October 15 for a trawl catcher vessel owner to request that a trawl catcher vessel operating in the BSAI be placed in the full observer coverage category for the following year. Because the effective date of this final rule is after October 15, 2016, the deadline for the 2017 calendar year is 15 days after the effective date of this final rule. This deadline for 2017 is necessary to provide an adequate amount of time after publication of the final rule in the Federal Register for the owner of a trawl catcher vessel to submit a full observer coverage request to NMFS.

Other Changes

NMFS corrects § 679.51(a)(2)(i)(C)(2) by changing “while” to “when” to be consistent with the terminology used in existing regulations.

NMFS removed the cross reference correction in § 679.21 from this final rule because the cross reference was corrected in the final rule to implement salmon bycatch management measures under Amendment 110 to the BSAI FMP (81 FR 37534, June 10, 2016).

OMB Revisions to Paperwork Reduction Act References in 15 CFR 902.1(b)

Section 3507(c)(B)(i) of the Paperwork Reduction Act requires that agencies inventory and display a current control number assigned by the Director, Office of Management and Budget (OMB), for each agency information collection. Section 902.1(b) identifies the location of NOAA regulations for which OMB approval numbers have been issued. Because this final rule revises and adds data elements within a collection-of-information for recordkeeping and reporting requirements, 15 CFR 902.1(b) is revised to reference correctly the sections resulting from this final rule.

Classification

Pursuant to section 304(b)(1)(A) and 305(d) of the Magnuson-Stevens Act, the Administrator, Alaska Region, NMFS, determined that this final rule is necessary for the conservation and management of the BSAI trawl limited access fisheries and is consistent with the BSAI FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

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

Small Entity Compliance Guide

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a final regulatory flexibility analysis, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. The preamble to the proposed rule (81 FR 44251, July 7, 2016) and the preamble to this final rule serve as the small entity compliance guide for this action. Copies of the proposed rule, this final rule, and additional information about how to comply with other requirements of the Observer Program are available on the NMFS Alaska Region Web site (https://alaskafisheries.noaa.gov/fisheries/observer-program).

Final Regulatory Flexibility Analysis

Section 604 of the Regulatory Flexibility Act (RFA) requires an agency to prepare a final regulatory flexibility analysis (FRFA) after being required by that section or any other law to publish a general notice of proposed rulemaking and when an agency promulgates a final rule under section 553 of Title 5 of the U.S. Code. The following paragraphs constitute the FRFA for this action. Section 604 describes the required contents of a FRFA: (1) A statement of the need for, and objectives of, the rule; (2) a statement of the significant issues raised by the public comments in response to the initial regulatory flexibility analysis, a statement of the assessment of the agency of such issues, and a statement of any changes made in the proposed rule as a result of such comments; (3) the response of the agency to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) in response to the proposed rule, and a detailed statement of any change made to the proposed rule in the final rule as a result of the comments; (4) a description of and an estimate of the number of small entities to which the rule will apply or an explanation of why no such estimate is available; (5) a description of the projected reporting, recordkeeping and other compliance requirements of the rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record; and (6) a description of the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.

Need for and Objectives of This Rule

A description of the need for, and objectives of, this rule is contained in the preamble to the proposed rule and this final rule and is not repeated here. This FRFA incorporates the Initial Regulatory Flexibility Analysis (IRFA) (see ADDRESSES) and the summary of the IRFA in the proposed rule (81 FR 44251, July 7, 2016).

Summary of Significant Issues Raised During Public Comment

NMFS published a proposed rule to modify observer coverage requirements for catcher vessels participating in the BSAI trawl limited access fisheries on July 7, 2016 (81 FR 44251). An IRFA was prepared and summarized in the Classification section of the preamble to the proposed rule. The comment period on the proposed rule ended on August 8, 2016. NMFS received two letters of comment, each in support of the action as proposed. These comments letters did not address the IRFA. The commenters did request the rulemaking process be completed as soon as possible. The Chief Counsel for Advocacy of the SBA did not file any comments on the proposed rule.

Number and Description of Small Entities Directly Regulated by this Rule

This final rule directly regulates the owners of trawl catcher vessels that participate in the BSAI trawl limited access fisheries. The SBA has established size standards for all major industry sectors in the United States. For RFA 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.

This final rule provides the owners of BSAI trawl catcher vessels that currently are placed in the partial observer coverage category the opportunity for placement in the full observer coverage category. In 2014, 100 catcher vessels used trawl gear in the BSAI. NMFS estimates that 13 of these trawl catcher vessels are directly regulated small entities. The owners of three of these catcher vessels requested to be placed in the full observer coverage category for all their BSAI trawl limited access fisheries during at least one year from 2013 through 2015.

Reporting, Recordkeeping and Other Compliance Requirements

This final rule includes one new reporting requirement and eliminates one reporting requirement for a vessel owner who requests placement of their vessel in the full observer coverage category for a year. Any trawl catcher vessel owner who requests placement of their trawl catcher vessel in the full observer coverage category will be required to submit a request to NMFS. This request is a new reporting requirement and only applies to those catcher vessel owners who request placement of their vessel in the full observer coverage category. The reporting requirement to log fishing trips in ODDS does not apply to vessels in the full observer coverage category; therefore, this final rule removes the reporting requirement for these directly regulated small entities to log fishing trips in ODDS.

Description of Significant Alternatives to This Rule That Minimize Economic Impacts on Small Entities

The RFA requires identification of any significant alternatives to this rule that accomplish the stated objectives, consistent with applicable statutes, and that would minimize any significant economic impact of this rule on small entities. This final rule is expected to create a net benefit for the directly regulated small entities because it offers trawl catcher vessel owners an opportunity to change their observer coverage category. The benefits of this final rule to trawl catcher vessel owners are expected to outweigh the costs of paying for an observer to be on board the vessel during all groundfish fishing in the BSAI trawl limited access fisheries, and the cost of the annual request to NMFS. If the benefits to a catcher vessel owner do not outweigh the costs, a catcher vessel owner can choose not to request their vessel be placed in the full observer coverage category, and therefore, would not be impacted by this final rule.

The Council considered the status quo (Alternative 1) and two action alternatives (Alternative 2 and Alternative 3). Alternative 3 included one option and three suboptions. The preferred alternative (Alternative 3 with Suboption 3) described in this final rule provides the owners of BSAI trawl catcher vessels an option of requesting, on an annual basis, placement in the full observer coverage category rather than remaining in the partial observer coverage category. No new requirements are imposed under the preferred alternative unless the catcher vessel owner requests placement in the full observer coverage category. Of the action alternatives analyzed, the preferred alternative provides the most flexibility for the owner of a trawl catcher vessel to request full observer coverage in lieu of partial observer coverage.

Alternative 1 (status quo) would have continued to offer catcher vessel owners the option of carrying full observer coverage under the interim policy, but would not remove the requirement in regulations for continued payment of the partial observer coverage fee in addition to the cost of full observer coverage. Alternative 2 is more restrictive than the preferred alternative because it would have permanently placed AFA trawl catcher vessels in the full observer coverage category rather than offering the vessel owners an option to request full observer coverage on an annual basis. Alternative 3 Option 1 would have allowed only the owners of AFA trawl catcher vessels to request placement in the full observer coverage category, rather than providing the opportunity to the owners of all BSAI trawl catcher vessels. Alternative 3 Suboption 1 would have established an earlier deadline to submit the request for full observer coverage than under the preferred alternative. Directly regulated small entities opposed the earlier deadline because they wanted more time to make business decisions about observer coverage in the following year. Alternative 3 Suboption 2 would have established a one-time request to be placed in the full observer coverage category rather than an annual request as under the preferred alternative. In summary, the preferred alternative of Alternative 3 with Suboption 3 (this final rule) offers the widest range of options to the widest range of directly regulated small entities, as compared to all other alternatives.

Collection-of-Information Requirements

This final rule contains a collection-of-information requirement subject to the Paperwork Reduction Act (PRA) and which has been approved by the OMB under Control No. 0648-0731. The public reporting burden for Request for Full Observer Coverage Category is estimated to average 5 minutes per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Send comments on these burden estimates or any other aspects of the collection of information, including suggestions for reducing the burden, to NMFS (see ADDRESSES), by email to [email protected], or fax to (202) 395-5806.

Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. All currently approved NOAA collections of information may be viewed at http://www.cio.noaa.gov/services_programs/prasubs.html.

List of Subjects 15 CFR Part 902

Reporting and recordkeeping requirements.

50 CFR Part 679

Alaska, Fisheries, Reporting and recordkeeping requirements.

Dated: September 22, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

For the reasons set out in the preamble, NMFS amends 15 CFR part 902 and 50 CFR part 679 as follows:

Title 15—Commerce and Foreign Trade PART 902—NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS 1. The authority citation for part 902 continues to read as follows: Authority:

44 U.S.C. 3501 et seq.

2. In § 902.1, in the table in paragraph (b), under the entry “50 CFR” revise entry for “679.51” to read as follows:
§ 902.1 OMB control numbers assigned pursuant to the Paperwork Reduction Act.

(b) * * *

CFR part or section where the information collection requirement
  • is located
  • Current OMB
  • control No. (all
  • numbers begin
  • with 0648-)
  • *    *    *    *     50 CFR: *    *    *    *     679.51 -0206, -0269, -0272, -0318, -0401, -0513, -0545, -0565, -0731. *    *    *    *    
    Title 50—Wildlife and Fisheries PART 679—FISHERIES OF THE EXCLUSIVE ECONOMIC ZONE OFF ALASKA 3. The authority citation for 50 CFR part 679 continues to read as follows: Authority:

    16 U.S.C. 773 et seq.; 1801 et seq.; 3631 et seq.; Pub. L. 108-447; Pub. L. 111-281.

    4. In § 679.51: a. Revise paragraphs (a)(2)(i)(C)(2) and (3); and b. Add paragraphs (a)(2)(i)(C)(4) and (a)(4).

    The revisions and additions read as follows:

    § 679.51 Observer requirements for vessels and plants.

    (a) * * *

    (2) * * *

    (i) * * *

    (C) * * *

    (2) Using trawl gear or hook-and-line gear when groundfish CDQ fishing (see § 679.2), except for catcher vessels less than or equal to 46 ft LOA using hook-and-line gear when groundfish CDQ fishing under § 679.32(c)(3)(iii);

    (3) Participating in the Rockfish Program; or

    (4) Using trawl gear in the BSAI if the vessel has been placed in the full observer coverage category under paragraph (a)(4) of this section.

    (4) BSAI trawl catcher vessel placement in the full observer coverage category for one year—(i) Applicability. The owner of a catcher vessel in the partial observer coverage category under paragraph (a)(1)(i) of this section may request to be placed in the full observer coverage category for all directed fishing for groundfish using trawl gear in the BSAI for a calendar year.

    (ii) How to request full observer coverage for one year. A trawl catcher vessel owner must complete a full observer coverage request and submit it to NMFS using ODDS. ODDS is described in paragraph (a)(1)(ii) of this section.

    (iii) Deadline. For 2017, a full observer coverage request must be submitted by November 15, 2016. For 2018 and every year after 2018, a full observer coverage request must be submitted by October 15 of the year prior to the calendar year in which the catcher vessel would be placed in the full observer coverage category.

    (iv) Notification. NMFS will notify the vessel owner through ODDS of approval or denial to place a trawl catcher vessel in the full observer coverage category. Unless otherwise specified in paragraph (a)(2) of this section, a trawl catcher vessel remains in the partial observer coverage category under paragraph (a)(1)(i) of this section until a request to place a trawl catcher vessel in the full observer coverage category has been approved by NMFS. Once placement in the full observer coverage category is approved by NMFS, a trawl catcher vessel cannot be placed in the partial observer coverage category until the following year.

    (v) Initial Administrative Determination (IAD). If NMFS denies a request to place a trawl catcher vessel in the full observer coverage category, NMFS will provide an IAD, which will explain the basis for the denial.

    (vi) Appeal. If the owner of a trawl catcher vessel wishes to appeal NMFS' denial of a request to place a trawl catcher vessel in the full observer coverage category, the owner may appeal the determination under the appeals procedure set out at 15 CFR part 906.

    §§ 679.5, 679.28, 679.52, 679.53, 679.84, and 679.93 [Amended]
    5. At each of the locations shown in the “Location” column, remove the phrase indicated in the “Remove” column and add in its place the phrase indicated in the “Add” column. Location Remove Add § 679.5(h)(1) , or by e-mail to [email protected] . § 679.28(d)(9)(ii) Observer sample station Observer sampling station § 679.52(b)(1)(iii)(B)(2) Observer manual Observer Sampling Manual § 679.52(b)(2)(i) Observer Manual Observer Sampling Manual § 679.52(b)(11)(x)(A)(4) Observer manual Observer Sampling Manual § 679.53(b)(2)(i) Observer Manual Observer Sampling Manual § 679.84(c)(3) § 679.50(c)(7)(i) § 679.51(a)(2) § 679.84(e) § 679.50(c)(7)(ii) § 679.51(a)(2) § 679.84(f)(1) § 679.50(c)(7)(ii) § 679.51(a)(2) § 679.84(f)(2) § 679.50(c)(7)(ii) § 679.51(a)(2) § 679.93(c)(3) § 679.50(c)(6) § 679.51(a)(2) § 679.93(c)(6) observer sample station observer sampling station § 679.93(d)(2) § 679.50(c)(6)(ii) § 679.51(a)(2)
    [FR Doc. 2016-23536 Filed 9-29-16; 8:45 am] BILLING CODE 3510-22-P
    SECURITIES AND EXCHANGE COMMISSION 17 CFR Part 232 [Release Nos. 33-10217; 34-78883; 39-2512; IC-32269] Adoption of Updated EDGAR Filer Manual AGENCY:

    Securities and Exchange Commission.

    ACTION:

    Final rule.

    SUMMARY:

    The Securities and Exchange Commission (the Commission) is adopting revisions to the Electronic Data Gathering, Analysis, and Retrieval System (EDGAR) Filer Manual and related rules to reflect updates to the EDGAR system. The updates are being made primarily to support the new submission form types N-MFP2 and N-MFP2/A for money market mutual funds; allow unregistered money market fund to file a report on submission form types N-CR and N-CR/A; update the date format for ABS-EE Asset Data schemas from MM/YYYY to MM-DD-YYYY for CMBS Asset Class: Item 2(c) (12), and Debt Securities Asset Class: Debt Securities, Item 5(f)(3); update the codes and descriptions referencing CMSA to reference CREFC for CMBS Asset Class Item 2(d)(28)(xii) and CMBS Asset Class Item 2(d)(28)(xiii); allow a Large Trader whose most recent Form 13H submission was a Form 13H-I (Inactive) to submit a Form 13H-T (Termination) regardless of elapsed time; and make documentation updates to Chapter 5 and Chapter 6 of the “EDGAR Filer Manual, Volume II: EDGAR Filing” relating to eXtensible Business Reporting Language (XBRL) format. The EDGAR system was upgraded to support the new submission form types N-MFP2 and N-MFP2/A for money market mutual funds on August 29, 2016. The EDGAR system is scheduled to be upgraded to support the other functionalities on September 19, 2016.

    DATES:

    Effective September 30, 2016. The incorporation by reference of the EDGAR Filer Manual is approved by the Director of the Federal Register as of September 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    In the Division of Investment Management, for questions concerning Form N-MFP2 and Form N-CR, contact Heather Fernandez at (202) 551-6708; in the Division of Corporate Finance, for questions concerning Form ABS-EE, contact Vik Sheth at (202) 551-3818; in the Division of Trading and Markets, for questions concerning Form 13H, contact Kathy Bateman at (202) 551-4345; and in the Division of Economic and Risk Analysis, for questions concerning eXtensible Business Reporting Language (XBRL) disseminations; contact Walter Hamscher at (202) 551-5397.

    SUPPLEMENTARY INFORMATION:

    We are adopting an updated EDGAR Filer Manual, Volume II. The Filer Manual describes the technical formatting requirements for the preparation and submission of electronic filings through the EDGAR system.1 It also describes the requirements for filing using EDGARLink Online and the Online Forms/XML Web site.

    1 We originally adopted the Filer Manual on April 1, 1993, with an effective date of April 26, 1993. Release No. 33-6986 (April 1, 1993) [58 FR 18638]. We implemented the most recent update to the Filer Manual on June 13, 2016. See Release No. 33-10095 (July 1, 2016) [81 FR 43047].

    The revisions to the Filer Manual reflect changes within Volume II entitled EDGAR Filer Manual, Volume II: “EDGAR Filing,” Version 38 (September 2016). The updated manual will be incorporated by reference into the Code of Federal Regulations.

    The Filer Manual contains all the technical specifications for filers to submit filings using the EDGAR system. Filers must comply with the applicable provisions of the Filer Manual in order to assure the timely acceptance and processing of filings made in electronic format.2 Filers may consult the Filer Manual in conjunction with our rules governing mandated electronic filing when preparing documents for electronic submission.3

    2See Rule 301 of Regulation S-T (17 CFR 232.301).

    3See Release No. 33-10095 in which we implemented EDGAR Release 16.2. For additional history of Filer Manual rules, please see the cites therein.

    The EDGAR system will be upgraded to Release 16.3 on September 19, 2016 and will introduce the following changes:

    An unregistered money market fund will now be able to file a report on submission form types N-CR andN-CR/A. When submitting N-CR andN-CR/A filings, filers that are unregistered money market funds can optionally provide values for the following fields:

    • Filer Investment Company Type • Series ID • Class (Contract) ID

    ABS-EE Asset Data schemas will be updated to change the date format from MM/YYYY to MM-DD-YYYY for the following Asset Class Items:

    • CMBS Asset Class: Item 2(c)(12), First Loan Payment Due Date • Debt Securities Asset Class: Item 5(f)(3), Demand Resolution Date

    In addition, the codes and descriptions referencing CMSA will be updated to reference CREFC for the following Asset Class Items:

    • CMBS Asset Class: Item 2(d)(28)(xii), Net Operating Income Net Cash Flow Securitization Code • CMBS Asset Class: Item 2(d)(28)(xiii), Net Operating Income Net Cash Flow Code

    The ABS-EE Asset Data schemas will also be updated to allow whole integer numbers in decimal fields. For more information, see the updated “EDGAR ABS XML Technical Specification” document located on the SEC's Public Web site (https://www.sec.gov/info/edgar/tech-specs).

    A Large Trader whose most recent Form 13H submission was a Form 13H-I (Inactive) will now be able to subsequently submit a Form 13H-T (Termination), regardless of the elapsed time.

    Documentation only corrections relating to eXtensible Business Reporting Language (XBRL) formatting were made to Chapter 5, “Constructing Attached Documents and Document Types” and Chapter 6 “Interactive Data” of the EDGAR Filer Manual: Volume II.

    On August 29, 2016, EDGAR Release 16.2.4 was updated to include two new submission form types—N-MFP2 and N-MFP2/A—to incorporate the amendments to Form N-MFP adopted by the Commission on September 16, 2015.

    These two new submission form types will be accepted from the EDGAR Filing Web site via filer-constructed XML submissions, as described in the “EDGAR Form N-MFP2 XML Technical Specification” document available on the SEC's Public Web site (https://www.sec.gov/info/edgar/tech-specs).

    EDGAR will only accept TEST submissions for submission form types N-MFP2 and N-MFP2/A until October 13, 2016. Beginning on October 14, 2016, submission form types N-MFP2 and N-MFP2/A will be accepted as LIVE or TEST submissions. After that date, filers will be prevented from submitting existing submission form type N-MFP1 beginning October 14, 2016. Filers will also be prevented from submitting existing submission form type N-MFP1/A beginning October 14, 2017.

    Along with the adoption of the Filer Manual, we are amending Rule 301 of Regulation S-T to provide for the incorporation by reference into the Code of Federal Regulations of today's revisions. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

    The updated EDGAR Filer Manual will be available for Web site viewing and printing; the address for the Filer Manual is https://www.sec.gov/info/edgar/edmanuals.htm. You may also obtain paper copies of the EDGAR Filer Manual from the following address: Public Reference Room, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m.

    Since the Filer Manual and the corresponding rule changes relate solely to agency procedures or practice, publication for notice and comment is not required under the Administrative Procedure Act (APA).4 It follows that the requirements of the Regulatory Flexibility Act 5 do not apply.

    4 5 U.S.C. 553(b).

    5 5 U.S.C. 601-612.

    The effective date for the updated Filer Manual and the rule amendments is September 30, 2016. In accordance with the APA,6 we find that there is good cause to establish an effective date less than 30 days after publication of these rules. The EDGAR system upgrade to Release 16.3 is scheduled to become available on September 19, 2016. The Commission believes that establishing an effective date less than 30 days after publication of these rules is necessary to coordinate the effectiveness of the updated Filer Manual with these system upgrades.

    6 5 U.S.C. 553(d)(3).

    Statutory Basis

    We are adopting the amendments to Regulation S-T under Sections 6, 7, 8, 10, and 19(a) of the Securities Act of 1933,7 Sections 3, 12, 13, 14, 15, 23, and 35A of the Securities Exchange Act of 1934,8 Section 319 of the Trust Indenture Act of 1939,9 and Sections 8, 30, 31, and 38 of the Investment Company Act of 1940.10

    7 15 U.S.C. 77f, 77g, 77h, 77j, and 77s(a).

    8 15 U.S.C. 78c, 78l, 78m, 78n, 78o, 78w, and 78ll.

    9 15 U.S.C. 77sss.

    10 15 U.S.C. 80a-8, 80a-29, 80a-30, and 80a-37.

    List of Subjects in 17 CFR Part 232

    Incorporation by reference, Reporting and recordkeeping requirements, Securities.

    Text of the Amendment

    In accordance with the foregoing, Title 17, Chapter II of the Code of Federal Regulations is amended as follows:

    PART 232—REGULATION S-T—GENERAL RULES AND REGULATIONS FOR ELECTRONIC FILINGS 1. The authority citation for part 232 continues to read in part as follows: Authority:

    15 U.S.C. 77f, 77g, 77h, 77j, 77s(a), 77z-3, 77sss(a), 78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll, 80a-6(c), 80a-8, 80a-29, 80a-30, 80a-37, and 7201 et seq.; and 18 U.S.C. 1350.

    2. Section 232.301 is revised to read as follows:
    § 232.301 EDGAR Filer Manual.

    Filers must prepare electronic filings in the manner prescribed by the EDGAR Filer Manual, promulgated by the Commission, which sets out the technical formatting requirements for electronic submissions. The requirements for becoming an EDGAR Filer and updating company data are set forth in the updated EDGAR Filer Manual, Volume I: “General Information,” Version 24 (December 2015). The requirements for filing on EDGAR are set forth in the updated EDGAR Filer Manual, Volume II: “EDGAR Filing,” Version 38 (September 2016). Additional provisions applicable to Form N-SAR filers are set forth in the EDGAR Filer Manual, Volume III: “N-SAR Supplement,” Version 5 (September 2015). All of these provisions have been incorporated by reference into the Code of Federal Regulations, which action was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You must comply with these requirements in order for documents to be timely received and accepted. The EDGAR Filer Manual is available for Web site viewing and printing; the address for the Filer Manual is https://www.sec.gov/info/edgar/edmanuals.htm. You can obtain paper copies of the EDGAR Filer Manual from the following address: Public Reference Room, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. You can also inspect the document 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.

    By the Commission.

    Dated: September 20, 2016. Brent J. Fields, Secretary.
    [FR Doc. 2016-23562 Filed 9-29-16; 8:45 am] BILLING CODE 8011-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 40 [Docket No. RM15-11-000; Order No. 830] Reliability Standard for Transmission System Planned Performance for Geomagnetic Disturbance Events AGENCY:

    Federal Energy Regulatory Commission, Department of Energy.

    ACTION:

    Final rule.

    SUMMARY:

    The Federal Energy Regulatory Commission (Commission) approves Reliability Standard TPL-007-1 (Transmission System Planned Performance for Geomagnetic Disturbance Events). The North American Electric Reliability Corporation (NERC), the Commission-certified Electric Reliability Organization, submitted Reliability Standard TPL-007-1 for Commission approval in response to a Commission directive in Order No. 779. Reliability Standard TPL-007-1 establishes requirements for certain registered entities to assess the vulnerability of their transmission systems to geomagnetic disturbance events (GMDs), which occur when the sun ejects charged particles that interact with and cause changes in the earth's magnetic fields. Applicable entities that do not meet certain performance requirements, based on the results of their vulnerability assessments, must develop a plan to achieve the performance requirements. In addition, the Commission directs NERC to develop modifications to Reliability Standard TPL-007-1: To modify the benchmark GMD event definition set forth in Attachment 1 of Reliability Standard TPL-007-1, as it pertains to the required GMD Vulnerability Assessments and transformer thermal impact assessments, so that the definition is not based solely on spatially-averaged data; to require the collection of necessary geomagnetically induced current monitoring and magnetometer data and to make such data publicly available; and to include a one-year deadline for the development of corrective action plans and two and four-year deadlines to complete mitigation actions involving non-hardware and hardware mitigation, respectively. The Commission also directs NERC to submit a work plan and, subsequently, one or more informational filings that address specific GMD-related research areas.

    DATES:

    This rule will become effective November 29, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Regis Binder (Technical Information), Office of Electric Reliability, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: (301) 665-1601, [email protected]

    Matthew Vlissides (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, Telephone: (202) 502-8408, [email protected]

    SUPPLEMENTARY INFORMATION: Order No. 830 Final Rule

    1. Pursuant to section 215 of the Federal Power Act (FPA), the Commission approves Reliability Standard TPL-007-1 (Transmission System Planned Performance for Geomagnetic Disturbance Events).1 The North American Electric Reliability Corporation (NERC), the Commission-certified Electric Reliability Organization (ERO), submitted Reliability Standard TPL-007-1 for Commission approval in response to a Commission directive in Order No. 779.2 Reliability Standard TPL-007-1 establishes requirements for certain registered entities to assess the vulnerability of their transmission systems to geomagnetic disturbance events (GMDs), which occur when the sun ejects charged particles that interact with and cause changes in the earth's magnetic fields. Reliability Standard TPL-007-1 requires applicable entities that do not meet certain performance requirements, based on the results of their vulnerability assessments, to develop a plan to achieve the requirements. Reliability Standard TPL-007-1 addresses the directives in Order No. 779 by requiring applicable Bulk-Power System owners and operators to conduct initial and on-going vulnerability assessments regarding the potential impact of a benchmark GMD event on the Bulk-Power System as a whole and on Bulk-Power System components.3 In addition, Reliability Standard TPL-007-1 requires applicable entities to develop and implement corrective action plans to mitigate identified vulnerabilities.4 Potential mitigation strategies identified in the proposed Reliability Standard include, but are not limited to, the installation, modification or removal of transmission and generation facilities and associated equipment.5 Accordingly, Reliability Standard TPL-007-1 constitutes an important step in addressing the risks posed by GMD events to the Bulk-Power System.

    1 16 U.S.C. 824o.

    2Reliability Standards for Geomagnetic Disturbances, Order No. 779, 78 FR 30,747 (May 23, 2013), 143 FERC ¶ 61,147, reh'g denied, 144 FERC ¶ 61,113 (2013).

    3See Reliability Standard TPL-007-1, Requirement R4; see also Order No. 779, 143 FERC ¶ 61,147 at PP 67, 71.

    4See Reliability Standard TPL-007-1, Requirement R7; see also Order No. 779, 143 FERC ¶ 61,147 at P 79.

    5See Reliability Standard TPL-007-1, Requirement R7.

    2. In addition, pursuant to section 215(d)(5) of the FPA, the Commission directs NERC to develop modifications to Reliability Standard TPL-007-1: (1) To revise the benchmark GMD event definition set forth in Attachment 1 of Reliability Standard TPL-007-1, as it pertains to the required GMD Vulnerability Assessments and transformer thermal impact assessments, so that the definition is not based solely on spatially-averaged data; (2) to require the collection of necessary geomagnetically induced current (GIC) monitoring and magnetometer data and to make such data publicly available; and (3) to include a one-year deadline for the completion of corrective action plans and two- and four-year deadlines to complete mitigation actions involving non-hardware and hardware mitigation, respectively.6 The Commission directs NERC to submit these revisions within 18 months of the effective date of this Final Rule. The Commission also directs NERC to submit a work plan (GMD research work plan) within six months of the effective date of this Final Rule and, subsequently, one or more informational filings that address specific GMD-related research areas.

    6 16 U.S.C. 824o(d)(5).

    I. Background A. Section 215 and Mandatory Reliability Standards

    3. Section 215 of the FPA requires the Commission to certify an ERO to develop mandatory and enforceable Reliability Standards, subject to Commission review and approval. Once approved, the Reliability Standards may be enforced in the United States by the ERO, subject to Commission oversight, or by the Commission independently.7

    7Id. 824o(e).

    B. GMD Primer

    4. GMD events occur when the sun ejects charged particles that interact with and cause changes in the earth's magnetic fields.8 Once a solar particle is ejected, it can take between 17 to 96 hours (depending on its energy level) to reach earth.9 A geoelectric field is the electric potential (measured in volts per kilometer (V/km)) on the earth's surface and is directly related to the rate of change of the magnetic fields.10 A geoelectric field has an amplitude and direction and acts as a voltage source that can cause GICs to flow on long conductors, such as transmission lines.11 The magnitude of the geoelectric field amplitude is impacted by local factors such as geomagnetic latitude and local earth conductivity.12 Geomagnetic latitude is the proximity to earth's magnetic north and south poles, as opposed to earth's geographic poles. Local earth conductivity is the ability of the earth's crust to conduct electricity at a certain location to depths of hundreds of kilometers down to the earth's mantle. Local earth conductivity impacts the magnitude (i.e., severity) of the geoelectric fields that are formed during a GMD event by, all else being equal, a lower earth conductivity resulting in higher geoelectric fields.13

    8 North American Electric Reliability Corp., 2012 Special Reliability Assessment Interim Report: Effects of Geomagnetic Disturbances on the Bulk Power System at i-ii (February 2012), http://www.nerc.com/files/2012GMD.pdf (GMD Interim Report).

    9Id. ii.

    10Id.

    11Id.

    12 NERC Petition, Ex. D (White Paper on GMD Benchmark Event Description) at 4.

    13Id.

    C. Order No. 779

    5. In Order No. 779, the Commission directed NERC, pursuant to section 215(d)(5) of the FPA, to develop and submit for approval proposed Reliability Standards that address the impact of geomagnetic disturbances on the reliable operation of the Bulk-Power System. The Commission based its directive on the potentially severe, wide-spread impact on the reliable operation of the Bulk-Power System that can be caused by GMD events and the absence of existing Reliability Standards to address GMD events.14

    14 Order No. 779, 143 FERC ¶ 61,147 at P 3.

    6. Order No. 779 directed NERC to implement the directive in two stages. In the first stage, the Commission directed NERC to submit, within six months of the effective date of Order No. 779, one or more Reliability Standards (First Stage GMD Reliability Standards) that require owners and operators of the Bulk-Power System to develop and implement operational procedures to mitigate the effects of GMDs consistent with the reliable operation of the Bulk-Power System.15

    15Id. P 2.

    7. In the second stage, the Commission directed NERC to submit, within 18 months of the effective date of Order No. 779, one or more Reliability Standards (Second Stage GMD Reliability Standards) that require owners and operators of the Bulk-Power System to conduct initial and on-going assessments of the potential impact of benchmark GMD events on Bulk-Power System equipment and the Bulk-Power System as a whole. The Commission directed that the Second Stage GMD Reliability Standards must identify benchmark GMD events that specify what severity of GMD events a responsible entity must assess for potential impacts on the Bulk-Power System.16 Order No. 779 explained that if the assessments identified potential impacts from benchmark GMD events, the Reliability Standards should require owners and operators to develop and implement a plan to protect against instability, uncontrolled separation, or cascading failures of the Bulk-Power System, caused by damage to critical or vulnerable Bulk-Power System equipment, or otherwise, as a result of a benchmark GMD event. The Commission directed that the development of this plan could not be limited to considering operational procedures or enhanced training alone but should, subject to the potential impacts of the benchmark GMD events identified in the assessments, contain strategies for protecting against the potential impact of GMDs based on factors such as the age, condition, technical specifications, system configuration or location of specific equipment.17 Order No. 779 observed that these strategies could, for example, include automatically blocking GICs from entering the Bulk-Power System, instituting specification requirements for new equipment, inventory management, isolating certain equipment that is not cost effective to retrofit or a combination thereof.

    16Id.

    17Id.

    D. Order No. 797

    8. In Order No. 797, the Commission approved Reliability Standard EOP-010-1 (Geomagnetic Disturbance Operations).18 NERC submitted Reliability Standard EOP-010-1 for Commission approval in compliance with the Commission's directive in Order No. 779 corresponding to the First Stage GMD Reliability Standards. In Order No. 797-A, the Commission denied the Foundation for Resilient Societies' (Resilient Societies) request for rehearing of Order No. 797. The Commission stated that the rehearing request “addressed a later stage of efforts on geomagnetic disturbances (i.e., NERC's future filing of Second Stage GMD Reliability Standards) and [that Resilient Societies] may seek to present those arguments at an appropriate time in response to that filing.” 19 In particular, the Commission stated that GIC monitoring requirements should be addressed in the Second Stage GMD Reliability Standards.20

    18Reliability Standard for Geomagnetic Disturbance Operations, Order No. 797, 79 FR 35,911 (June 25, 2014), 147 FERC ¶ 61,209, reh'g denied, Order No. 797-A, 149 FERC ¶ 61,027 (2014).

    19 Order No. 797-A, 149 FERC ¶ 61,027 at P 2.

    20Id. P 27 (stating that the Commission continues “to encourage NERC to address the collection, dissemination, and use of geomagnetic induced current data, by NERC, industry or others, in the Second Stage GMD Reliability Standards because such efforts could be useful in the development of GMD mitigation methods or to validate GMD models”).

    E. NERC Petition and Reliability Standard TPL-007-1

    9. On January 21, 2015, NERC petitioned the Commission to approve Reliability Standard TPL-007-1 and its associated violation risk factors and violation severity levels, implementation plan, and effective dates.21 NERC also submitted a proposed definition for the term “Geomagnetic Disturbance Vulnerability Assessment or GMD Vulnerability Assessment” for inclusion in the NERC Glossary of Terms (NERC Glossary). NERC maintains that Reliability Standard TPL-007-1 is just, reasonable, not unduly discriminatory or preferential and in the public interest. NERC further contends that Reliability Standard TPL-007-1 satisfies the directive in Order No. 779 corresponding to the Second Stage GMD Reliability Standards.

    21 Reliability Standard TPL-007-1 is not attached to this final rule. Reliability Standard TPL-007-1 is available on the Commission's eLibrary document retrieval system in Docket No. RM15-11-000 and on the NERC website, www.nerc.com. NERC submitted an errata on February 2, 2015 containing a corrected version of Exhibit A (Proposed Reliability Standard TPL-007-1).

    10. NERC states that Reliability Standard TPL-007-1 applies to planning coordinators, transmission planners, transmission owners and generation owners who own or whose planning coordinator area or transmission planning area includes a power transformer with a high side, wye-grounded winding connected at 200 kV or higher.22 NERC explains that the applicability criteria for qualifying transformers in Reliability Standard TPL-007-1 are the same as that for the First Stage GMD Reliability Standard in Reliability Standard EOP-010-1, which the Commission approved in Order No. 797.

    22 A power transformer with a “high side wye-grounded winding” refers to a power transformer with windings on the high voltage side that are connected in a wye configuration and have a grounded neutral connection. NERC Petition at 13 n.32.

    11. Reliability Standard TPL-007-1 contains seven requirements. Requirement R1 requires planning coordinators and transmission planners to determine the individual and joint responsibilities in the planning coordinator's planning area for maintaining models and performing studies needed to complete the GMD Vulnerability Assessment required in Requirement R4.

    12. Requirement R2 requires planning coordinators and transmission planners to maintain system models and GIC system models needed to complete the GMD Vulnerability Assessment required in Requirement R4.

    13. Requirement R3 requires planning coordinators and transmission planners to have criteria for acceptable system steady state voltage limits for their systems during the benchmark GMD event described in Attachment 1 (Calculating Geoelectric Fields for the Benchmark GMD Event).

    14. Requirement R4 requires planning coordinators and transmission planners to conduct a GMD Vulnerability Assessment every 60 months using the benchmark GMD event described in Attachment 1 to Reliability Standard TPL-007-1. The benchmark GMD event is based on a 1-in-100 year frequency of occurrence and is composed of four elements: (1) A reference peak geoelectric field amplitude of 8 V/km derived from statistical analysis of historical magnetometer data; (2) a scaling factor to account for local geomagnetic latitude; (3) a scaling factor to account for local earth conductivity; and (4) a reference geomagnetic field time series or wave shape to facilitate time-domain analysis of GMD impact on equipment.23 The product of the first three elements is referred to as the regional geoelectric field peak amplitude.24

    23See Reliability Standard TPL-007-1, Att. 1; see also NERC Petition, Ex. D (White Paper on GMD Benchmark Event Description) at 5.

    24 NERC Petition, Ex. D (White Paper on GMD Benchmark Event Description) at 5.

    15. Requirement R5 requires planning coordinators and transmission planners to provide GIC flow information, to be used in the transformer thermal impact assessment required in Requirement R6, to each transmission owner and generator owner that owns an applicable transformer within the applicable planning area.

    16. Requirement R6 requires transmission owners and generator owners to conduct thermal impact assessments on solely and jointly owned applicable transformers where the maximum effective GIC value provided in Requirement R5 is 75 amperes per phase (A/phase) or greater.

    17. Requirement R7 requires planning coordinators and transmission planners to develop corrective action plans if the GMD Vulnerability Assessment concludes that the system does not meet the performance requirements in Table 1 (Steady State Planning Events).

    F. Notice of Proposed Rulemaking

    18. On May 14, 2015, the Commission issued a notice of proposed rulemaking (NOPR) proposing to approve Reliability Standard TPL-007-1.25 In addition, the Commission proposed to direct that NERC develop three modifications to Reliability Standard TPL-007-1. First, the Commission proposed to direct NERC to revise the benchmark GMD event definition in Reliability Standard TPL-007-1 so that the definition is not based solely on spatially-averaged data. Second, the Commission proposed to direct NERC to revise Reliability Standard TPL-007-1 to require the installation of GIC monitors and magnetometers where necessary. Third, the Commission proposed to direct NERC to revise Reliability Standard TPL-007-1 to require corrective action plans (Requirement R7) to be developed within one year and, with respect to the mitigation actions called for in the corrective action plans, non-hardware mitigation actions to be completed within two years of finishing development of the corrective action plan and hardware mitigation to be completed within four years. The NOPR also proposed to direct NERC to submit a work plan and, subsequently, one or more informational filings that address specific GMD-related research areas and sought comment on certain issues relating to the transformer thermal impact assessments (Requirement R6) and the meaning of language in Table 1 of Reliability Standard TPL-007-1.

    25Reliability Standard for Transmission System Planned Performance for Geomagnetic Disturbance Events, Notice of Proposed Rulemaking, 80 FR 29,990 (May 26, 2015), 151 FERC ¶ 61,134 (2015) (NOPR).

    19. On August 20, 2015 and October 2, 2015, the Commission issued notices setting supplemental comment periods regarding specific documents. On March 1, 2016, Commission staff led a technical conference on Reliability Standard TPL-007-1 and issues raised in the NOPR.26

    26 Written presentations at the March 1, 2016 Technical Conference and the Technical Conference transcript referenced in this Final Rule are accessible through the Commission's eLibrary document retrieval system in Docket No. RM15-11-000.

    20. On April 28, 2016, NERC made a filing notifying the Commission that “NERC identified new information that may necessitate a minor revision to a figure in one of the supporting technical white papers. This revision would not require a change to any of the Requirements of the proposed Reliability Standard.” 27 On June 28, 2016, NERC submitted the revised technical white papers referenced in the April 28, 2016 filing. On June 29, 2016, the Commission issued a notice setting a supplemental comment period regarding the revised technical white papers submitted by NERC on June 28, 2016.

    27 NERC April 28, 2016 Filing at 1.

    21. In response to the NOPR and subsequent notices, 28 entities filed initial and supplemental comments. We address below the issues raised in the NOPR and comments. The Appendix to this Final Rule lists the entities that filed comments in response to the NOPR and in response to the supplemental comment period notices.

    II. Discussion

    22. Pursuant to section 215(d) of the FPA, the Commission approves Reliability Standard TPL-007-1 as just, reasonable, not unduly discriminatory or preferential and in the public interest. While we recognize that scientific and operational research regarding GMD is ongoing, we believe that the potential threat to the bulk electric system warrants Commission action at this time, including efforts to conduct critical GMD research and update Reliability Standard TPL-007-1 as appropriate.

    23. First, we find that Reliability Standard TPL-007-1 addresses the directives in Order No. 779 corresponding to the development of the Second Stage GMD Reliability Standards. Reliability Standard TPL-007-1 does this by requiring applicable Bulk-Power System owners and operators to conduct, on a recurring five-year cycle,28 initial and on-going vulnerability assessments regarding the potential impact of a benchmark GMD event on the Bulk-Power System as a whole and on Bulk-Power System components.29 In addition, Reliability Standard TPL-007-1 requires applicable entities to develop and implement corrective action plans to mitigate vulnerabilities identified through those recurring vulnerability assessments.30 Potential mitigation strategies identified in the proposed Reliability Standard include, but are not limited to, the installation, modification or removal of transmission and generation facilities and associated equipment.31 Accordingly, Reliability Standard TPL-007-1 constitutes an important step in addressing the risks posed by GMD events to the Bulk-Power System.

    28 A detailed explanation of the five-year GMD Vulnerability Assessment and mitigation cycle is provided in paragraph 103, infra.

    29See Reliability Standard TPL-007-1, Requirement R4; see also Order No. 779, 143 FERC ¶ 61,147 at PP 67, 71.

    30See Reliability Standard TPL-007-1, Requirement R7; see also Order No. 779, 143 FERC ¶ 61,147 at P 79.

    31See Reliability Standard TPL-007-1, Requirement R7.

    24. The Commission also approves the inclusion of the term “Geomagnetic Disturbance Vulnerability Assessment or GMD Vulnerability Assessment” in the NERC Glossary; Reliability Standard TPL-007-1's associated violation risk factors and violation severity levels; and NERC's proposed implementation plan and effective dates. The Commission also affirms, as raised for comment in the NOPR, that cost recovery for prudent costs associated with or incurred to comply with Reliability Standard TPL-007-1 and future revisions to the Reliability Standard will be available to registered entities.32

    32 NOPR, 151 FERC ¶ 61,134 at P 49 n.60.

    25. While we conclude that Reliability Standard TPL-007-1 satisfies the directives in Order No. 779, based on the record developed in this proceeding, the Commission determines that Reliability Standard TPL-007-1 should be modified to reflect the new information and analyses discussed below, as proposed in the NOPR. Accordingly, pursuant to section 215(d)(5) of the FPA, the Commission directs NERC to develop and submit modifications to Reliability Standard TPL-007-1 concerning: (1) The calculation of the reference peak geoelectric field amplitude component of the benchmark GMD event definition; (2) the collection and public availability of necessary GIC monitoring and magnetometer data; and (3) deadlines for completing corrective action plans and the mitigation measures called for in corrective action plans. The Commission directs NERC to develop and submit these revisions for Commission approval within 18 months of the effective date of this Final Rule.

    26. Furthermore, to improve the understanding of GMD events generally, the Commission directs NERC to submit within six months from the effective date of this Final Rule a GMD research work plan.33 Specifically, we direct NERC to: (1) Further analyze the area over which spatial averaging should be calculated for stability studies, including performing sensitivity analyses on squares less than 500 km per side (e.g., 100 km, 200 km); (2) further analyze earth conductivity models by, for example, using metered GIC and magnetometer readings to calculate earth conductivity and using 3-D readings; (3) determine whether new analyses and observations support modifying the use of single station readings around the earth to adjust the spatially averaged benchmark for latitude; (4) research, as discussed below, aspects of the required thermal impact assessments; and (5) in NERC's discretion, conduct any GMD-related research areas generally that may impact the development of new or modified GMD Reliability Standards. We expect that work completed through the GMD research work plan, as well as other analyses facilitated by the increased collection and availability of GIC monitoring and magnetometer data directed herein, will lead to further modifications to Reliability Standard TPL-007-1 as our collective understanding of the threats posed by GMD events improves.

    33 Following submission of the GMD research work plan, the Commission will notice the filing for public comment and issue an order addressing its proposed content and schedule.

    27. Below we discuss the following issues raised in the NOPR and NOPR comments: (1) The benchmark GMD event definition described in Reliability Standard TPL-007-1, Attachment 1 (Calculating Geoelectric Fields for the Benchmark GMD Event); (2) transformer thermal impact assessments in Requirement R6; (3) GMD research work plan; (4) collection and public availability of GIC monitoring and magnetometer data; (5) completion of corrective action plans in Requirement R7; (6) meaning of “minimized” in Table 1 (Steady State Planning Events) of Reliability Standard TPL-007-1; (7) NERC's proposed implementation plan and effective dates; and (8) other issues.

    A. Benchmark GMD Event Definition NERC Petition

    28. NERC states that the purpose of the benchmark GMD event is to “provide a defined event for assessing system performance during a low probability, high magnitude GMD event.” 34 NERC explains that the benchmark GMD event represents “the most severe GMD event expected in a 100-year period as determined by a statistical analysis of recorded geomagnetic data.” 35 The benchmark GMD event definition is used in the GMD Vulnerability Assessments and thermal impact assessment requirements of Reliability Standard TPL-007-1 (Requirements R4 and R6).

    34 NERC Petition at 15.

    35Id.

    29. As noted above, NERC states that the benchmark GMD event definition has four elements: (1) A reference peak geoelectric field amplitude of 8 V/km derived from statistical analysis of historical magnetometer data; (2) a scaling factor to account for local geomagnetic latitude; (3) a scaling factor to account for local earth conductivity; and (4) a reference geomagnetic field time series or wave shape to facilitate time-domain analysis of GMD impact on equipment.36

    36 NERC Petition, Ex. D (White Paper on GMD Benchmark Event Description) at 5.

    30. The standard drafting team determined that a 1-in-100 year GMD event would cause an 8 V/km reference peak geoelectric field amplitude at 60 degree geomagnetic latitude using Québec's earth conductivity.37 The standard drafting team stated that:

    37Id.

    the reference geoelectric field amplitude was determined through statistical analysis using . . . field measurements from geomagnetic observatories in northern Europe and the reference (Quebec) earth model . . . . The Quebec earth model is generally resistive and the geological structure is relatively well understood. The statistical analysis resulted in a conservative peak geoelectric field amplitude of approximately 8 V/km . . . . The frequency of occurrence of this benchmark GMD event is estimated to be approximately 1 in 100 years.38

    38Id. (footnotes omitted).

    31. The standard drafting team explained that it used field measurements taken from the IMAGE magnetometer chain, which covers Northern Europe, for the period 1993-2013 to calculate the reference peak geoelectric field amplitude used in the benchmark GMD event definition.39 As described in NERC's petition, the standard drafting team “spatially averaged” four different station groups of IMAGE data, each spanning a square area of approximately 500 km (roughly 310 miles) in width.40 The standard drafting team justified the use of spatial averaging by stating that Reliability Standard TPL-007-1 is designed to “address wide-area effects caused by a severe GMD event, such as increased var absorption and voltage depressions. Without characterizing GMD on regional scales, statistical estimates could be weighted by local effects and suggest unduly pessimistic conditions when considering cascading failure and voltage collapse.” 41

    39Id. at 8. The International Monitor for Auroral Geomagnetic Effects (IMAGE) consists of 31 magnetometer stations in northern Europe maintained by 10 institutes from Estonia, Finland, Germany, Norway, Poland, Russia, and Sweden. See IMAGE website, http://space.fmi.fi/image/beta/?page=home#.

    40 As applied by the standard drafting team, spatial averaging refers to the averaging of geoelectric field amplitude readings within a given area. NERC Petition, Ex. D (White Paper on GMD Benchmark Event Description) at 9.

    41 NERC Petition, Ex. D (White Paper on GMD Benchmark Event Description) at 9.

    32. NERC states that the benchmark GMD event includes scaling factors to enable applicable entities to tailor the reference peak geoelectric field to their specific location for conducting GMD Vulnerability Assessments. NERC explains that the scaling factors in the benchmark GMD event definition are applied to the reference peak geoelectric field amplitude to adjust the 8 V/km value for different geomagnetic latitudes and earth conductivities.42

    42 NERC Petition at 18-19.

    33. The standard drafting team also identified a reference geomagnetic field time series from an Ottawa magnetic observatory during a 1989 GMD event that affected Québec.43 The standard drafting team used this time series to estimate a geoelectric field, represented as a time series (i.e., 10-second values over a period of days), that is expected to occur at 60 degree geomagnetic latitude during a 1-in-100 year GMD event. NERC explains that this time series is used to facilitate time-domain analysis of GMD impacts on equipment.44

    43 NERC Petition, Ex. D (White Paper on GMD Benchmark Event Description) at 5-6, 15-16 (“the reference geomagnetic field waveshape was selected after analyzing a number of recorded GMD events . . . the March 13-14, 1989 GMD event, measured at NRCan's Ottawa geomagnetic observatory, was selected as the reference geomagnetic field waveform because it provides generally conservative results when performing thermal analysis of power transformers”).

    44Id. at 5-6.

    34. In the sub-sections below, we discuss two issues concerning the benchmark GMD event definition addressed in the NOPR: (1) Reference peak geoelectric field amplitude; and (2) geomagnetic latitude scaling factor.

    1. Reference Peak Geoelectric Field Amplitude NOPR

    35. The NOPR proposed to approve the benchmark GMD event definition. The NOPR stated that the “benchmark GMD event definition proposed by NERC complies with the directive in Order No. 779 . . . [c]onsistent with the guidance provided in Order No. 779, the benchmark GMD event definition proposed by NERC addresses the potential widespread impact of a severe GMD event, while taking into consideration the variables of geomagnetic latitude and local earth conductivity.” 45

    45 NOPR, 151 FERC ¶ 61,134 at P 32.

    36. In addition, the NOPR proposed to direct NERC to develop modifications to Reliability Standard TPL-007-1. Specifically, the NOPR proposed to direct NERC to modify the reference peak geoelectric field amplitude component of the benchmark GMD event definition so that it is not calculated based solely on spatially-averaged data. The NOPR explained that this could be achieved, for example, by requiring applicable entities to conduct GMD Vulnerability Assessments (and, as discussed below, thermal impact assessments) using two different benchmark GMD events: The first benchmark GMD event using the spatially-averaged reference peak geoelectric field value (8 V/km) and the second using the non-spatially averaged peak geoelectric field value cited in the GMD Interim Report (20 V/km). The NOPR stated that the revised Reliability Standard could then require applicable entities to take corrective actions, using engineering judgment, based on the results of both assessments. The NOPR explained that applicable entities would not always be required to mitigate to the level of risk identified by the non-spatially averaged analysis; instead, the selection of mitigation would reflect the range of risks bounded by the two analyses, and be based on engineering judgment within this range, considering all relevant information. The NOPR stated that, alternatively, NERC could propose an equally efficient and effective modification that does not rely exclusively on the spatially-averaged reference peak geoelectric field value.

    Comments

    37. NERC does not support revising the benchmark GMD event definition. NERC maintains that the spatially-averaged reference peak geoelectric field amplitude value in Reliability Standard TPL-007-1 is “technically-justified, scientifically sound, and has been published in a peer-reviewed research journal covering geomagnetism and other topics.” 46 NERC contends that the standard drafting team determined that using the non-spatially averaged 20 V/km figure in the GMD Interim Report would “consistently overestimate the geoelectric field of a 1-in-100 year GMD event.” 47 NERC states that, by contrast, spatial averaging “properly associates the relevant spatial scales for the analyzed and applied geoelectric fields and would not distort the complexity of the potential impacts of a GMD event.” 48 NERC claims that the 500 km-wide square areas used to determine the areas of spatial averaging are “based on consideration of transmission systems and geomagnetic observation patterns . . . [and are] an appropriate scale for a system-wide impact in a transmission system.” 49 To support this position, NERC cites a June 2015 peer-reviewed publication authored in part by some members of the standard drafting team.50

    46 NERC Comments at 6.

    47Id. at 7.

    48Id. at 8.

    49Id.

    50See Pulkkinen, A., Bernabeu, E., Eichner, J., Viljanen, A., Ngwira, C., “Regional-Scale High-Latitude Extreme Geoelectric Fields Pertaining to Geomagnetically Induced Currents,” Earth, Planets and Space (June 19, 2015) (2015 Pulkkinen Paper).

    38. Industry commenters, largely represented by the Trade Associations' comments, do not support revising the benchmark GMD event definition.51 The Trade Associations' reasons largely mirror NERC's. While recognizing that the spatially-averaged reference peak geoelectric field amplitude is lower than the non-spatially averaged figure, the Trade Associations contend that the non-spatially averaged value is inappropriate because: (1) The peak geoelectric field only affects relatively small areas and quickly declines with distance from the peak; (2) Reliability Standard TPL-007-1 is intended to address the wide-scale effects of a GMD event; and (3) the benchmark GMD event definition is designed to provide a realistic estimate of wide-area effects caused by a severe GMD event. The Trade Associations contend that a non-spatially averaged reference peak geoelectric field amplitude “would be weighted by local effects and suggest unrealistic conditions for system analysis . . . [which] could lead to unnecessary costs for customers, while yielding very little tangible benefit to reliability.” 52 Like NERC, the Trade Associations cite to the 2015 Pulkkinen Paper to support the use of 500 km-wide squares in performing the spatial averaging analysis. The Trade Associations note, however, that the selection of 500 km is “only the beginning . . . [of the] exploration of spatial geoelectric field structures pertaining to extreme GIC.” 53

    51 Trade Associations Comments at 13-18. AEP, APS, ATC, BPA, CEA, Hydro One, ITC, Joint ISOs/RTOs and Exelon indicated that they do not support the NOPR proposal in separate comments and/or by joining the Trade Associations' comments. See AEP Comments at 3; APS Comments at 2; ATC Comments at 3; BPA Comments at 3-4; CEA Comments at 8-13; Hydro One Comments 1-2; ITC Comments at 3-5; Joint ISOs/RTOs Comments at 4-5; Exelon Comments at 2.

    52 Trade Associations Comments at 15.

    53Id. at 17 (quoting 2015 Pulkkinen Paper at 6).

    39. The Trade Associations, while not supportive of the NOPR proposal, recommend that if the Commission remains concerned about relying on NERC's proposed spatially-averaged reference peak geoelectric field amplitude, the Commission should:

    allow NERC to further determine the appropriate localized studies to be performed by moving the “local hot spot” around a planning area. This approach may better ensure that the peak values only impact a local area instead of unrealistically projecting uniform peak values over a broad area. This approach also should better align with the Commission's concerns because this type of study would more accurately reflect the real-world impact of a GMD event on the [Bulk-Power System]. The Trade Associations understand that existing planning tools may not yet have such capabilities, but the tools can be modified to allow such study.54

    54Id. at 16.

    40. Industry commenters raise other concerns with the NOPR proposal. CEA states that it would be inappropriate to rely on the non-spatially averaged 20 V/km reference peak geoelectric field figure because that figure is found in a single publication. CEA also contends that it is impractical to use “engineering judgment” to weigh the GMD Vulnerability Assessments using the spatially-averaged and non-spatially averaged reference peak geoelectric field amplitudes, as described in the NOPR.55 ITC states that NERC's proposal is reasonable and that the reference peak geoelectric field amplitude value can be revised periodically based on new information. Joint ISOs/RTOs state that the Commission should afford due weight to NERC's technical expertise.

    55See also Hydro One Comments at 1-2; Resilient Societies Comments at 24-25.

    41. A September 2015 paper prepared by the Los Alamos National Laboratory states that it analyzed the IMAGE data using a different methodology to calculate reference peak geoelectric field amplitude values based on each of eight different magnetometer installations in Northern Europe. However, unlike the standard drafting team, the Los Alamos Paper did not spatially average the IMAGE data. The authors calculated peak geoelectric field amplitudes ranging from 8.4 V/km to 16.6 V/km, with a mean of the eight values equal to 13.2 V/km.56 The authors used a statistical formula and probability distribution to determine their 1-in-100 year GMD event parameters, as opposed to the 20 V/km non-spatially averaged event from the 2012 paper cited in the GMD Interim Report that visually extrapolated the data.

    56 Rivera, M., Backhaus, S., “Review of the GMD Benchmark Event in TPL-007-1,” Los Alamos National Laboratory (September 2015) (Los Alamos Paper).

    42. Roodman contends that “NERC's 100-year benchmark GMD event is appropriately conservative in magnitude (except perhaps in the southern-most US) if unrealistic in some other respects.” 57 Roodman states that “overall NERC's analytical frame does not strongly clash with the data.” 58 However, Roodman contends that actual data support local hot-spots in a larger region of lower magnitude geoelectric fields that are not typically uniform in magnitude or direction.59 Roodman addresses comments by Kappenman against the benchmark GMD event by stating that the Oak Ridge Report's Meta-R-319 study, authored by Kappenman, modeled a 1-in-100 year GMD event based largely on misunderstandings of historic GMDs, both in magnitude and geographic footprint.60 Roodman recommends that the Commission “require a much larger array of events for simulation” in light of the “deep uncertainty and complexity of the GMD.” 61

    57 Roodman Comments at 4. Roodman criticizes the proposed benchmark GMD event definition because it assumes that the induced electrical field resulting from a GMD event is spatially uniform. Roodman also contends that a GMD event that is less than a 1-in-100 year storm could potentially damage transformers. Id. at 12-14.

    58 Roodman Comments at 9.

    59Id. at 10, 12-13.

    60Id. at 5-6 (citing Oak Ridge National Laboratory, Geomagnetic Storms and Their Impacts on the U.S. Power Grid: Meta-R-319 at pages I-1 to I-3 (January 2010), http://www.ornl.gov/sci/ees/etsd/pes/pubs/ferc_Meta-R-319.pdf (Meta-R-319 Study).

    61Id. at 15.

    43. Commenters opposed to the benchmark GMD event definition proposed by NERC maintain that the standard drafting team significantly underestimated the reference peak geoelectric field amplitude value for a 1-in-100 year GMD event by relying on data from the IMAGE system and by applying spatial averaging to that data set.62 For example, Resilient Societies states that the standard drafting team should have analyzed “real-world data from within the United States and Canada, including magnetometer readings from the [USGS] and Natural Resources Canada observatories . . . [h]ad NERC and the Standard Drafting Team collected and analyzed available real-world data, they would have likely found that the severity of GMD in 1-in-100 Year reference storm had been set far below a technically justified level and without a `strong technical basis.' ” 63 Likewise, Kappenman contends that there are multiple examples where the benchmark GMD event and the standard drafting team's model for calculating geoelectric fields under-predict actual, historical GIC readings.64 Commenters opposed to NERC's proposal variously argue that the reference peak geoelectric field amplitude should be set at a level commensurate with the 1921 Railroad Storm or 1859 Carrington Event or at the 20 V/km level cited in the GMD Interim Report.65

    62See, e.g., JINSA Comments at 2; Emprimus Comments at 1. See also Gaunt Comments at 9 (indicating that the proposed benchmark GMD event definition may underestimate the effects of a 1-in-100 GMD event).

    63 Resilient Societies Comments at 20-21.

    64 Kappenman Comments at 15-29.

    65See, e.g., EIS Comments at 2 (advocating use of 20 V/km); Gaunt Comments at 6-9 (contending that NERC's proposed figure results in a “possible underestimation of the effects of GICs” without suggesting an alternative figure); JINSA Comments at 2 (advocating use of 20 V/km); Emprimus Comments at 1 (advocating use of 20 V/km); Briggs Comments at 1 (advocating that the benchmark GMD event should be a “Carrington Class solar superstorm”).

    Commission Determination

    44. The Commission approves the reference peak geoelectric field amplitude figure proposed by NERC. In addition, the Commission, as proposed in the NOPR, directs NERC to develop revisions to the benchmark GMD event definition so that the reference peak geoelectric field amplitude component is not based solely on spatially-averaged data. The Commission directs NERC to submit this revision within 18 months of the effective date of this Final Rule.

    45. NERC and industry comments do not contain new information to support relying solely on spatially-averaged data to calculate the reference peak geoelectric field amplitude in the benchmark GMD event definition. The 2015 Pulkkinen Paper contains the same justifications for spatial averaging as those presented in NERC's petition. In addition, the 2015 Pulkkinen Paper validates the NOPR's concerns with relying solely on spatial averaging generally and with the method used by the standard drafting team to spatially average the IMAGE data specifically. The 2015 Pulkkinen Paper, for example, states that “regional scale geoelectric fields have not been considered earlier from the statistical and extreme analyses standpoint” and “selection of an area of 500 km [for spatial averaging] . . . [is] subjective.” 66 Further, the 2015 Pulkkinen Paper notes that “we emphasize that the work described in this paper is only the beginning in our exploration of spatial geoelectric field structures pertaining to extreme GIC . . . [and] [w]e will . . . expand the statistical analyses to include characterization of multiple different spatial scales.” 67 On the latter point, NERC “agrees that such research would provide additional modeling insights and supports further collaborative efforts between space weather researchers and electric utilities through the NERC GMD Task Force.” 68 These statements support the NOPR's observation that the use of spatial averaging in this context is new, and thus there is a dearth of information or research regarding its application or appropriate scale.

    66 2015 Pulkkinen Paper at 2.

    67Id. at 6.

    68 NERC Comments at 8.

    46. While we believe our directive addresses concerns with relying solely on spatially-averaged data, we reiterate the position expressed in the NOPR that a GMD event will have a peak value in one or more location(s) and the amplitude will decline over distance from the peak; and, as a result, imputing the highest peak geoelectric field value in a planning area to the entire planning area may incorrectly overestimate GMD impacts.69 Accordingly, our directive should not be construed to prohibit the use of spatial averaging in some capacity, particularly if more research results in a better understanding of how spatial averaging can be used to reflect actual GMD events.

    69 NOPR, 151 FERC ¶ 61,134 at P 35.

    47. The NOPR proposed to direct NERC to revise Reliability Standard TPL-007-1 so that the reference peak geoelectric field value is not based solely on spatially-averaged data. NERC and industry comments largely focused on the NOPR's discussion of one possible example to address the directive (i.e., by running GMD Vulnerability Assessments using spatially-averaged and non-spatially averaged reference peak geoelectric field amplitudes). However, while the method discussed in the NOPR is one possible option, the NOPR did not propose to direct NERC to develop revisions based on that option or any specific option. The Trade Associations' comments, discussed above, demonstrate that there is another way to address the NOPR directive (i.e., by performing planning models that also assess planning areas for localized “hot spots”). This approach may have merit if, for example, the geographic size of the hot spot is supported by actual data and the hot spot is centered over one or more locations that include an entity's facilities that become critical during a GMD event. Without pre-judging how NERC proposes to address the Commission's directive, NERC's response to this directive should satisfy the NOPR's concern that reliance on spatially-averaged data alone does not address localized peaks that could potentially affect the reliable operation of the Bulk-Power System.

    48. We believe our directive should also largely address the comments submitted by entities opposed to NERC's proposed reference peak geoelectric field amplitude. Those commenters endorsed using a higher reference peak geoelectric field amplitude value, such as the 20 V/km cited in the GMD Interim Report. At the outset, we observe that the comments critical of the standard drafting team's use of the IMAGE data only speculate that had the standard drafting team used other sources, the calculated reference peak geoelectric field amplitude value would have been higher.70 Moreover, among the commenters critical of NERC's proposal, there is disagreement over the magnitude of historical storms which some of these commenters would use as a model.71 While NERC has discretion on how to propose to address our directive, NERC could revise Reliability Standard TPL-007-1 to apply a higher reference peak geoelectric field amplitude value to assess the impact of localized hot spots on the Bulk-Power System, as suggested by the Trade Associations. The effects of such hot spots could include increases in GIC levels, volt-ampere reactive power consumption, harmonics on the Bulk-Power System (and associated misoperations) and transformer heating. Moreover, the directive to revise Reliability Standard TPL-007-1 and, as discussed below, the directives to research geomagnetic latitude scaling factors and earth conductivity models as part of the GMD research work plan and to revise Reliability Standard TPL-007-1 to require the collection of necessary GIC monitoring and magnetometer data to validate GMD models should largely address or at least help to focus-in on factors that may be causing any inaccuracies in the standard drafting team's model.

    70See, e.g., Resilient Societies Comments at 21 (“Had NERC and the Standard Drafting Team collected and analyzed available real-world data, they would have likely found that the severity of GMD in 1-in-100 Year reference storm had been set far below a technically justified level . . .” (emphasis added)).

    71See, e.g., Gaunt Comments at 13 (stating that the 1859 Carrington Event is “probably outside the re-occurrence frequency of 1:100 years adopted by NERC for the benchmark event”); Briggs Comments at 1 (advocating using a “ `Carrington Class' super storm” as the benchmark GMD event).

    49. Consistent with Order No. 779, the Commission does not specify a particular reference peak geoelectric field amplitude value that should be applied to hot spots given present uncertainties. While 20 V/km would seem to be a possible value, the Los Alamos Paper suggests that the 20 V/km figure may be too high. The Los Alamos Paper analyzed the non-spatially averaged IMAGE data to calculate a reference peak geoelectric field amplitude range (i.e., 8.4 V/km to 16.6 V/km) that is between NERC's proposed spatially-averaged value of 8 V/km and the non-spatially averaged 20 V/km figure cited in the GMD Interim Report.

    50. Although the NOPR did not propose to direct NERC to submit revisions to Reliability Standard TPL-007-1 by a certain date with respect to the benchmark GMD event definition, the Commission determines that it is appropriate to impose an 18-month deadline from the effective date of this Final Rule. As discussed below, the Commission approves the five-year implementation period for Reliability Standard TPL-007-1 proposed by NERC. Having NERC submit revisions to the benchmark GMD event definition within 18 months of the effective date of this Final Rule, with the Commission acting promptly on the revised Reliability Standard, should afford enough time to apply the revised benchmark GMD event definition in the first GMD Vulnerability Assessment under the timeline set forth in Reliability Standard TPL-007-1's implementation plan. If circumstances, such as the complexity of the revised benchmark GMD event, require it, NERC may propose and justify a revised implementation plan.

    2. Geomagnetic Latitude Scaling Factor NOPR

    51. The NOPR proposed to approve the geomagnetic latitude scaling factor in NERC's proposed benchmark GMD event definition. However, the NOPR sought comment on whether, in light of studies indicating that GMD events could have pronounced effects on lower geomagnetic latitudes, a modification is warranted to reduce the impact of the scaling factors.72

    72 NOPR, 151 FERC ¶ 61,134 at P 37 (citing Ngwira, C.M., Pulkkinen, A., Kuznetsova, M.M., Glocer, A., “Modeling extreme `Carrington-type' space weather events using three-dimensional global MHD simulations,” 119 Journal of Geophysical Research: Space Physics 4472 (2014) (finding that in Carrington-type events “the region of large induced ground electric fields is displaced further equatorward . . . [and] thereby may affect power grids . . . such as [those in] southern states of [the] continental U.S.”); Gaunt, C.T., Coetzee, G., “Transformer Failures in Regions Incorrectly Considered to have Low GIC-Risk,” 2007 IEEE Lausanne 807 (July 2007) (stating that twelve transformers were damaged and taken out of service in South Africa (at −40 degrees latitude) during the October 2003 Halloween Storm GMD event)). See also Liu, C., Li, Y., Pirjola, R., “Observations and modeling of GIC in the Chinese large-scale high-voltage power networks,” Journal Space Weather Space Climate 4 at A03-p6 (2014) (Liu Paper), http://www.swsc-journal.org/articles/swsc/pdf/2014/01/swsc130009.pdf (finding that GICs of about 25A/phase had been measured in a transformer at a nuclear power plant at 22.6 degrees north latitude (significantly further away from the magnetic pole than Florida)).

    Comments

    52. NERC contends that the geomagnetic latitude scaling factor in Reliability Standard TPL-007-1 “accurately models the reduction of induced geoelectric fields that occurs over the mid-latitude region during a 100-year GMD event scenario . . . [and] describes the observed drop in geoelectric field that has been exhibited in analysis of major recorded geomagnetic storms.” 73 NERC maintains that modifying the scaling factor is not technically justified based on the publications cited in the NOPR. NERC states that the first paper cited in the NOPR is based on models that are not mature and reflect a 1-in-150 year storm. NERC contends that the second paper does not clearly show that the purported transformer damage in South Africa was the result of abnormally high GICs during the October 2003 Halloween Storm. NERC further states that the standard drafting team analyzed the October 2003 Halloween Storm when developing the proposed geomagnetic latitude scaling factor.

    73 NERC Comments at 9 (citing Ngwira, C., Pulkkinen, A., Wilder, F., Crowley, G., “Extended Study of Extreme Geoelectric Field Event Scenarios for Geomagnetically Induced Current Applications,” 11 Space Weather 121 (2013) (Ngwira 2013 Paper)).

    53. The Trade Associations support the geomagnetic latitude scaling factor proposed by NERC. Like NERC, the Trade Associations contend that the papers cited in the NOPR do not support modifications because the models in the first paper “remain highly theoretical and not sufficiently validated” and because the second paper likely involved other causal factors leading to the transformer failure.74 Joint ISOs/RTOs also support the geomagnetic latitude scaling factor proposed by NERC. ITC states that NERC's proposal is a “reasonable approach given the current state of the science pertaining to GMD . . . [but] that as the science pertaining to GMD matures and more data becomes available, the scaling factors should be revisited and revised.” 75 ITC suggests revisiting the geomagnetic latitude scaling factor every five years to incorporate any new developments in GMD science.

    74 Trade Associations Comments at 18-19.

    75 Joint ISOs/RTOs Comments at 5.

    54. Several commenters question or disagree with the geomagnetic latitude scaling factors in Reliability Standard TPL-007-1 based on simulations and reports of damage to transformers in areas expected to be at low risk due to their geomagnetic latitude.76 EIS contends that the proposed geomagnetic latitude scaling factor's assumption of a storm centered at 60 degrees geomagnetic latitude is inconsistent with a study relied upon by NERC.77 The Los Alamos Paper's analysis suggests that NERC's proposed geomagnetic latitude scaling factors, while they fit well with weaker historical GMD events from which they were derived, may not accurately represent the effects of a 1-in-100 year GMD event at lower geomagnetic latitudes. The Los Alamos Paper states that a model of the electrojet is needed to “effectively extrapolate the small to moderate disturbance data currently in the historical record to disturbances as large as the TPL-007-1 Benchmark Event.” 78 The Los Alamos Paper uses a larger number of geomagnetic disturbances (122 instead of 12) and a wider range of observatories by using the world-wide SuperMAG magnetometer array data, which includes the INTERMAGNET data used to support NERC's geomagnetic latitude scaling factors. The Los Alamos Paper shows that for more severe storms (Dst <−300, for which there are nine storms in the data set) the NERC scaling factors tend to be low, off by a factor of up to two or three at some latitudes. The Los Alamos Paper also recommends “an additional degree of conservatism in the mid-geomagnetic latitudes” until such time as a model is developed.79 The Los Alamos Paper authors recommend a factor of 2 as a conservative correction.

    76See, e.g., Gaunt Comments at 6; JINSA Comments at 2; Emprimus Comments at 2-3; Roodman Comments at 9; Resilient Societies Comments at 31-31; Kappenman Comments at 41-42.

    77 EIS Comments at 5 (citing Ngwira 2013 Paper).

    78 Los Alamos Paper at 12.

    79Id.

    Commission Determination

    55. The Commission approves the geomagnetic latitude scaling factor in the benchmark GMD event definition. In addition, the Commission directs NERC to conduct further research on geomagnetic latitude scaling factors as part of the GMD research work plan discussed below.

    56. Based on the record, the Commission finds sufficient evidence to conclude that lower geomagnetic latitudes are, to some degree, less susceptible to the effects of GMD events. The issue identified in the NOPR and by some commenters focused on the specific scaling factors in Reliability Standard TPL-007-1 in light of some analyses and anecdotal evidence suggesting that lower geomagnetic latitudes may be impacted by GMDs to a larger degree than reflected in Reliability Standard TPL-007-1.

    57. The geomagnetic latitude scaling factor in Reliability Standard TPL-007-1 is supported by some of the available research.80 In addition, with the exception of the Los Alamos Paper, commenters did not provide new information on the proposed scaling factor nor did commenters suggest alternative scaling factors. However, the Commission finds that there are enough questions regarding the effects of GMDs at lower geomagnetic latitudes to warrant directing NERC to study this issue further as part of the GMD research work plan. The Los Alamos Paper and the sources cited in the NOPR are suggestive that a 1-in-100 year GMD event could have a greater impact on lower geomagnetic latitudes than NERC's proposed scaling factor assumes. But, as the Los Alamos Paper recognizes, the current absence of historical data on large GMD events precludes a definitive conclusion based on an empirical analysis of historical observations. Moreover, in prepared comments for the March 1, 2016 Technical Conference, Dr. Backhaus, one of the authors of the Los Alamos Paper, recommended that “the current NERC analysis should be adopted and further analysis performed with additional observational data and severe disturbance modeling efforts with the intent of refining the geomagnetic latitude scaling law in future revisions.” 81 The Commission directs NERC to reexamine the geomagnetic latitude scaling factors in Reliability Standard TPL-007-1 as part of the GMD research work plan, including using existing models and developing new models to extrapolate from historical data on small to moderate GMD events the impacts of a large, 1-in-100 year GMD event on lower geomagnetic latitudes.

    80See NERC Comments at 9 (citing Ngwira 2013 Paper). We disagree with the contention made by EIS that NERC's proposed geomagnetic latitude scaling factors are inconsistent with the Ngwira 2013 Paper. EIS maintains that the Ngwira 2013 Paper supports the conclusion that the benchmark GMD event should be centered at 50 degrees geomagnetic latitude instead of the 60 degree geomagnetic latitude figure in Reliability Standard TPL-007-1. The Ngwira 2013 Paper contains no such conclusion. Instead, the Ngwira 2013 Paper found that the latitude threshold boundary is a transition region having a definite lower bound of 50 degrees geomagnetic latitude but with an upper range as high as 55 degrees geomagnetic latitude. Ngwira 2013 Paper at 127, 130. The Ngwira 2013 Paper also stated that its findings were “in agreement with earlier observations by [Thomson et al., 2011] and more recently by [Pulkkinen et al., 2012], which estimated the location to be within 50 [degrees]-62 [degrees].” Id. at 124.

    81 Statement of Scott Backhaus, March 1, 2016 Technical Conference at 2.

    B. Thermal Impact Assessments NERC Petition

    58. Reliability Standard TPL-007-1, Requirement R6 requires owners of transformers that are subject to the Reliability Standard to conduct thermal analyses to determine if the transformers would be able to withstand the thermal effects associated with a benchmark GMD event. NERC states that transformers are exempt from the thermal impact assessment requirement if the maximum effective GIC in the transformer is less than 75 A/phase during the benchmark GMD event as determined by an analysis of the system. NERC explains that “based on available power transformer measurement data, transformers with an effective GIC of less than 75 A/phase during the Benchmark GMD Event are unlikely to exceed known temperature limits established by technical organizations.” 82

    82 NERC Petition at 30.

    59. As provided in Requirements R5 and R6, “the maximum GIC value for the worst case geoelectric field orientation for the benchmark GMD event described in Attachment 1” determines whether a transformer satisfies the 75 A/phase threshold. If the 75 A/phase threshold is satisfied, Requirement R6 states, in relevant part, that a thermal impact assessment should be conducted on the qualifying transformer based on the effective GIC flow information provided in Requirement R5.

    60. In its June 28, 2016 filing, NERC states that it identified an error in Figure 1 (Upper Bound of Peak Metallic Hot Spot Temperatures Calculated Using the Benchmark GMD Event) of the White Paper on Screening Criterion for Transformer Thermal Impact Assessment that resulted in incorrect plotting of simulated power transformer peak hot-spot heating from the benchmark GMD event. NERC revised Figure 1 in the White Paper on Screening Criterion for Transformer Thermal Impact Assessment and made corresponding revisions to related text, figures and tables throughout the technical white papers supporting the proposed standard. NERC maintains that even with the revision to Figure 1, “the standard drafting team determined that the 75 A per phase threshold for transformer thermal impact assessment remains a valid criterion . . . [and] it is not necessary to revise any Requirements of the proposed Reliability Standard.” 83

    83 NERC June 28, 2016 Filing at 1.

    NOPR

    61. The NOPR proposed to approve the transformer thermal impact assessments in Requirement R6. In addition, as with the benchmark GMD event definition, the NOPR proposed to direct NERC to revise Requirement R6 to require registered entities to apply spatially averaged and non-spatially averaged peak geoelectric field values, or some equally efficient and effective alternative, when conducting thermal impact assessments. The NOPR also noted that Requirement R6 does not use the maximum GIC-producing orientation to conduct the thermal assessment for qualifying transformers; instead, the requirement uses the effective GIC time series described in Requirement R5.2 to conduct the thermal assessment on qualifying transformers. The NOPR sought comment from NERC as to why qualifying transformers are not assessed for thermal impacts using the maximum GIC-producing orientation and directed NERC to address whether, by not using the maximum GIC-producing orientation, the required thermal impact assessments could underestimate the impact of a benchmark GMD event on a qualifying transformer.

    Comments

    62. NERC opposes modifying the thermal impact assessments in Requirement R6 so that the assessments do not rely only on spatially-averaged data. NERC claims that the benchmark GMD event definition will “result in GIC calculations that are appropriately scaled for system-wide assessments.” 84 NERC also contends that the “analysis performed by the standard drafting team of the impact of localized enhanced geoelectric fields on the GIC levels in transformers indicates that relatively few transformers in the system are affected.” 85 In response to the question in the NOPR of why qualifying transformers are not assessed for thermal impacts using the maximum GIC producing orientation, NERC states that “the orientation of the geomagnetic field varies widely and continuously during a GMD event . . . [and] would be aligned with the maximum GIC-producing orientation for only a few minutes.” 86 NERC concludes that “[i]n the context of transformer hot spot heating with time constants in the order of tens of minutes, alignment with any particular orientation for a few minutes at a particular point in time is not a driving concern.” 87 NERC further states that the wave shape used in Reliability Standard TPL-007-1 provides “generally conservative results when performing thermal analysis of power transformers.” 88

    84 NERC Comments at 17.

    85Id.

    86Id. at 19.

    87Id.

    88Id.

    63. The Trade Associations and CEA do not support the proposed NOPR directive because, they state, it focuses too heavily on individual transformers. The Trade Associations maintain that Reliability Standard TPL-007-1 “was never intended to address specific localized areas that might experience peak conditions and affect what we understand to be a very small number of assets that are unlikely to initiate a cascading outage.” 89

    89 Trade Associations Comments at 21.

    64. Certain non-industry commenters contend that the 75 A/phase qualifying threshold for thermal impact assessments is not technically justified. Emprimus contends that “many transformers have GIC ratings less than 75 amps per phase,” but Emprimus claims that an Idaho National Lab study showed that “GIC introduced at 10 amps per phase on high voltage transformers exceed harmonic levels allowed under IEEE 519.” 90 Emprimus also maintains that a 2013 IEEE paper “suggest[s] that there can be generator rotor damage at GIC levels which exceed 50 amps per phase.” 91 Gaunt contends, based on his analysis of historical events, that “degradation is initiated in transformers by currents that are significantly below the 75 amps per phase.” 92 Gaunt states that “[u]ntil better records are kept of transformer [dissolved gas in oil analysis] and transformer failure, the proposed level of 75 [A/phase] of GIC needed to initiate assessment of transformer response must be considered excessively high.” 93 Gaunt recommends a qualifying threshold of 15 amps per phase. Resilient Societies states that the 75 A/phase threshold is based on a mathematical model for one type of transformer and that several tests referenced in the standard drafting team's White Paper on Transformer Thermal Impact Assessment were carried out under no load or minimal load conditions. In addition, Resilient Societies contends that applying the 75 A/phase threshold and NERC's proposed benchmark GMD event (i.e., using the spatially-averaged reference peak geoelectric field amplitude) results in only “two out of approximately 560 extra high voltage transformers” requiring thermal impact assessments in the PJM region; only one 345 kV transformer requiring thermal impact assessment in Maine; and zero transformers requiring thermal impact assessments in ATC's network.94 Kappenman contends that the 75 A/phase threshold does not consider transformers with tertiary windings or autotransformers which may be impacted at lower GIC levels than 75 A/phase.95

    90 Emprimus Comments at 4.

    91Id.

    92 Gaunt Comments at 13.

    93Id. at 14.

    94 Resilient Societies Comments at 5-14. Resilient Societies states that modeling performed by Central Maine Power Co. and Emprimus for the Maine Public Utilities Commission indicates that eight 345 kV transformers (53 percent according to Resilient Societies) would require thermal impact assessments in Maine if the reference peak geoelectric field amplitude were set at 20 V/km. Id. at 10. Resilient Societies also contends that this result is consistent with the Oak Ridge Meta-R-319 Study's finding that eight transformers would be “at risk” in Maine under a “ `30 Amp At-Risk Threshold scenario.' ” Id. Central Maine Power Co. calculated that the scaled NERC benchmark GMD event for the northernmost point in Maine would be 4.53 V/km. Resilient Societies' calculations regarding ATC estimate that the scaled benchmark GMD event for Wisconsin would be 2 V/km. Id. at 14.

    95 The Commission received two comments following NERC's June 28, 2016 Filing. However, the supplemental comments did not specifically address the revisions submitted in NERC's June 28, 2016 filing.

    Commission Determination

    65. Consistent with our determination above regarding the reference peak geoelectric field amplitude value, the Commission directs NERC to revise Requirement R6 to require registered entities to apply spatially averaged and non-spatially averaged peak geoelectric field values, or some equally efficient and effective alternative, when conducting thermal impact assessments.

    66. In the NOPR, the Commission requested comment from NERC regarding why Requirement R6 does not use the maximum GIC-producing orientation to conduct the thermal assessment for qualifying transformers. After considering NERC's response, we continue to have concerns with not using the maximum GIC-producing orientation for the thermal assessment of transformers. However, at this time we do not direct NERC to modify Reliability Standard TPL-007-1. Instead, as part of the GMD research work plan discussed below, NERC is directed to study this issue to determine how the geoelectric field time series can be applied to a particular transformer so that the orientation of the time series, over time, will maximize GIC flow in the transformer, and to include the results in a filing with the Commission.

    67. We are not persuaded by the comments opposed to Requirement R6's application of a 75 A/phase qualifying threshold. The standard drafting team's White Paper on Thermal Screening Criterion, as revised by NERC in the June 28, 2016 Filing, provides an adequate technical basis to approve NERC's proposal. As noted in the revised White Paper on Thermal Screening Criterion, the calculated metallic hot spot temperature corresponding to an effective GIC of 75 A/phase is 172 degrees Celsius; that figure is higher than the original figure of 150 degrees Celsius calculated by the standard drafting team but is still below the 200 degree Celsius limit specified in IEEE Std C57.91-2011.96 The comments, particularly those of Gaunt, attempt to correlate historical transformer failures to past GMD events (e.g., 2003 Halloween Storm), while arguing that the transformers damaged in those events did not experience GICs of 75 A/phase. The evidence adduced by Gaunt and others is inconclusive.97 We therefore direct NERC to include further analysis of the thermal impact assessment qualifying threshold in the GMD research work plan.

    96 NERC June 28, 2016 Filing, Revised White Paper on Screening Criterion for Transformer Thermal Impact Assessment at 3.

    97See, e.g., Gaunt Comments at 13 (“Although it has not been possible to assemble an exact model of the power system during the period 29-31 October 2003, and data on the ground conductivity in Southern Africa is not known with great certainty, we are confident that the several calculations of GIC that been carried out are not grossly inaccurate.”).

    68. In NOPR comments and in comments to the standard drafting team, Kappenman stated that delta winding heating due to harmonics has not been adequately considered by the standard drafting team and that, thermally, this is a bigger concern than metallic hot spot heating.98 The standard drafting team responded that the vulnerability described for tertiary winding harmonic heating is based on the assumption that delta winding currents can be calculated using the turns ratio between primary and tertiary winding, which is incorrect when a transformer is under saturation.99 The standard drafting team concluded that Kappenman's concerns regarding delta windings being a problem from a thermal standpoint are unwarranted and that the criteria developed by the standard drafting team use state-of-the-art analysis methods and measurement-supported transformer models. The Commission believes that the heating effects of harmonics on transformers, as discussed at the March 1, 2016 Technical Conference, are of concern and require further research.100 Accordingly, we direct NERC to address the effects of harmonics, including tertiary winding harmonic heating and any other effects on transformers, as part of the GMD research work plan.101

    98 Kappenman Comments at 45.

    99 Consideration of Comments Project 2013-03 Geomagnetic Disturbance Mitigation at 39 (December 5, 2014), http://www.nerc.com/pa/Stand/Project201303GeomagneticDisturbanceMitigation/Comment%20Report%20_2013-03_GMD_12052014.pdf.

    100 At the March 1, 2016 Technical Conference, Dr. Horton, a member of the standard drafting team, discussed the potential negative impacts of harmonics generated by GMDs on protection systems, reactive power resources and generators. Slide Presentation of Randy Horton, March 1, 2016 Technical Conference at 2-6.

    101 NERC indicated in its comments that it is already studying the issue of harmonics. NERC Comments at 14 (“NERC is collaborating with researchers to examine more complex GMD vulnerability issues, such as harmonics and mitigation assessment techniques, to enhance the modeling capabilities of the industry”).

    C. GMD Research Work Plan NOPR

    69. The NOPR proposed to address the need for more data and certainty regarding GMD events and their potential effect on the Bulk-Power System by directing NERC to submit informational filings that address GMD-related research areas. The NOPR proposed to direct NERC to submit in the first filing a GMD research work plan indicating how NERC plans to: (1) Further analyze the area over which spatial averaging should be calculated for stability studies, including performing sensitivity analyses on squares less than 500 km per side (e.g., 100 km, 200 km); (2) further analyze earth conductivity models by, for example, using metered GIC and magnetometer readings to calculate earth conductivity and using 3-D readings; (3) determine whether new analyses and observations support modifying the use of single station readings around the earth to adjust the spatially averaged benchmark for latitude; and (4) assess how to make GMD data (e.g., GIC monitoring and magnetometer data) available to researchers for study.

    70. With respect to GIC monitoring and magnetometer readings, the NOPR sought comment on the barriers, if any, to public dissemination of such readings, including if their dissemination poses a security risk and if any such data should be treated as Critical Energy Infrastructure Information or otherwise restricted to authorized users. The NOPR proposed that NERC submit the GMD research work plan within six months of the effective date of a final rule in this proceeding. The NOPR also proposed that the GMD research work plan submitted by NERC should include a schedule for submitting one or more informational filings that apprise the Commission of the results of the four additional study areas, as well as any other relevant developments in GMD research, and should assess whether Reliability Standard TPL-007-1 remains valid in light of new information or whether revisions are appropriate.

    Comments

    71. NERC states that continued GMD research is necessary and that the potential impacts of GMDs on reliability are evolving. NERC, however, prefers that the NERC GMD Task Force continue its research without the GMD research work plan proposed in the NOPR. NERC contends that allowing the NERC GMD Task Force to continue its work would “accomplish NERC's and the Commission's shared goals in advancing GMD understanding and knowledge, while providing the flexibility necessary for NERC to work effectively with its international research partners to address risks to the reliability of the North American Bulk-Power System.” 102 NERC also claims that, in addition to being unnecessary given the work of the NERC GMD Task Force, the NOPR proposal “poses practical challenges . . . [because it would] bind[] NERC to a specific and inflexible research plan and report schedule to be determined six months (or even a year) following the effective date of a final rule in this proceeding.” 103

    102 NERC Comments at 13.

    103Id. at 16.

    72. The Trade Associations and CEA do not support the GMD research work plan. Instead, they contend that NERC should be allowed to pursue GMD research independently.

    73. Several commenters, while not addressing the NOPR proposal specifically, state that additional research is necessary to validate or improve elements of the benchmark GMD event definition.104

    104See, e.g., USGS Comments at 1 (addressing earth conductivity models), Bardin Comments at 2 (addressing earth conductivity models); Roodman Comments at 3 (addressing reference peak geoelectric field amplitude); Gaunt Comments at 7 (addressing spatial averaging).

    74. The Trade Associations state that monitoring data should be available for academic research purposes. Resilient Societies contends that monitoring data should be publicly disseminated on a regular basis and that there is no security risk in releasing such data because they relate to naturally occurring phenomena. Emprimus states that it supports making GIC and magnetometer monitoring data available to the public. Bardin supports making GIC and GMD-related information to the public or at least to “legitimate researchers.”

    75. Hydro One and CEA do not support mandatory data sharing without the use of non-disclosure agreements.

    Commission Determination

    76. The Commission recognizes, as do commenters both supporting and opposing proposed Reliability Standard TPL-007-1, that our collective understanding of the threats posed by GMD is evolving as additional research and analysis are conducted. These ongoing efforts are critical to the nation's long-term efforts to protect the grid against a major GMD event. While we approve NERC's proposed Reliability Standard TPL-007-1 and direct certain modifications, as described above, the Commission also concludes that facilitating additional research and analysis is necessary to adequately address these threats. As discussed in the next two sections of this final rule, the Commission directs a three-prong approach to further those efforts by directing NERC to: (1) Develop, submit, and implement a GMD research work plan; (2) develop revisions to Reliability Standard TPL-007-1 to require responsible entities to collect GIC monitoring and magnetometer data; and (3) collect GIC monitoring and magnetometer data from registered entities for the period beginning May 2013, including both data existing as of the date of this order and new data going forward, and to make that information available.

    77. First, the Commission adopts the NOPR proposal and directs NERC to submit a GMD research work plan and, subsequently, informational filings that address the GMD-related research areas identified in the NOPR, additional research tasks identified in this Final Rule (i.e., the research tasks identified in the thermal impact assessment discussion above) and, in NERC's discretion, any GMD-related research areas generally that may impact the development of new or modified GMD Reliability Standards.105 The GMD research work plan should be submitted within six months of the effective date of this final rule. The research required by this directive should be informed by ongoing GMD-related research efforts of entities such as USGS, National Atmospheric and Oceanic Administration (NOAA), National Aeronautics and Space Administration, Department of Energy, academia and other publicly available contributors, including work performed for the National Space Weather Action Plan.106

    105 The GMD research work plan need not address the fourth research area identified in the NOPR (i.e., assess how to make GIC monitoring and magnetometer data available to researchers for study) given the Commission's directive and discussion below regarding the collection and dissemination of necessary GIC monitoring and magnetometer data.

    106 National Science and Technology Council, National Space Weather Action Plan (October 2015), https://www.whitehouse.gov/sites/default/files/microsites/ostp/final_nationalspaceweatheractionplan_20151028.pdf.

    78. As part of the second research area identified in the NOPR (i.e., further analyze earth conductivity models by, for example, using metered GIC and magnetometer readings to calculate earth conductivity and using 3-D readings), the GMD research work plan should specifically investigate “coastal effects” on ground conductivity models.

    79. In addition, the large variances described by USGS in actual 3-D ground conductivity data raise the question of whether one time series geomagnetic field is sufficient for vulnerability assessments. The characteristics, including frequencies, of the time series interact with the ground conductivity to produce the geoelectric field that drives the GIC. Therefore, the research should address whether additional realistic time series should be selected to perform assessments in order to capture the time series that produces the most vulnerability for an area.

    80. The comments largely agree that additional GMD research should be pursued, particularly with respect to the elements of the benchmark GMD event definition (i.e., the reference peak geoelectric field amplitude value, geomagnetic latitude scaling factor, and earth conductivity scaling factor). There is ample evidence in the record to support the need for additional GMD-related research.107 For example, USGS submitted comments indicating that USGS's one dimensional ground electrical conductivity models used by the standard drafting team have a “significant limitation” in that they assume that a “[one dimensional] conductivity-with-depth profile can adequately represent a large geographic region,” which USGS describes as a “gross simplification.” 108 USGS observes that while the “proposed standard attempted to incorporate the best scientific research available . . . it must be noted that the supporting science is quickly evolving.” 109 USGS recommends that “the proposed standard should establish a process for updates and improvements that acknowledges and addresses the quickly evolving nature of relevant science and associated data.” 110

    107See, e.g., NERC October 22, 2015 Supplemental Comments at 7-8 (expressing support for additional research regarding geomagnetic latitude scaling factors and earth conductivity models).

    108 USGS Comments at 1.

    109Id.

    110Id. We note that Reliability Standard TPL-007-1, Att. 1 (Calculating Geoelectric Fields for the Benchmark GMD Event) already provides that a “planner can also use specific earth model(s) with documented justification . . .” Accordingly, Reliability Standard TPL-007-1 includes a mechanism for incorporating improvements in earth conductivity models when calculating the benchmark GMD event.

    81. Opposition to the proposal centers on the contention that the proposed directive is unnecessary and potentially counterproductive given the continuing work of the NERC GMD Task Force. We do not find these comments persuasive. Our directive requires NERC to submit a work plan for the study of GMD-related issues that are already being examined or that NERC agrees should be studied.111 Nothing in our directive precludes NERC from continuing to use the NERC GMD Task Force as a vehicle for conducting the directed research or other research. Indeed, we encourage NERC to continue to use the GMD Task Force as a forum for engagement with interested stakeholders. In addition, we do not set specific deadlines for completion of the research; we only require NERC to submit the GMD research work plan within six months of the effective date of a final rule. The GMD research work plan, in turn, should include target dates for the completion of research topics and the reporting of findings to the Commission. The Commission intends to notice and invite comment on the GMD research work plan. An extension of time to submit the GMD research work plan may be available if six months proves to be insufficient. In addition, given the uncertainties commonly associated with complex research projects, the Commission will be flexible regarding changes to the tasks and target dates established in the GMD research work plan.

    111See, e.g., NERC Comments at 8 (“NERC agrees that [spatial averaging] research would provide additional modeling insights and supports further collaborative efforts between space weather researchers and electric utilities through the NERC GMD Task Force”), at 10 (“NERC agrees that additional [geomagnetic latitude scaling] research is necessary, and supports the significant research that is occurring throughout the space weather community to develop and validate models and simulation techniques”), at 13 (“Working with EPRI, researchers at USGS, and industry, NERC will work to improve the earth conductivity models that are a vital component to understanding the risks of GMD events in each geographic region”), and at 23 (“efforts are already underway to expand GMD monitoring capabilities . . . [and] [t]hrough these efforts, NERC and industry should effectively address the concerns noted by the Commission in the NOPR, including ensuring a more complete set of data for operational and planning needs and supporting analytical validation and situational awareness”).

    D. Monitoring Data NERC Petition

    82. Reliability Standard TPL-007-1, Requirement R2 requires responsible entities to “maintain System models and GIC System models of the responsible entity's planning area for performing the study or studies needed to complete GMD Vulnerability Assessment(s).” NERC states that Reliability Standard TPL-007-1 contains “requirements to develop the models, studies, and assessments necessary to build a picture of overall GMD vulnerability and identify where mitigation measures may be necessary.” 112 NERC explains that mitigating strategies “may include installation of hardware (e.g., GIC blocking or monitoring devices), equipment upgrades, training, or enhanced Operating Procedures.” 113

    112 NERC Petition at 13.

    113Id. at 32.

    NOPR

    83. The NOPR proposed to direct NERC to revise Reliability Standard TPL-007-1 to require the installation of monitoring equipment (i.e., GIC monitors and magnetometers) to the extent there are any gaps in existing GIC monitoring and magnetometer networks. Alternatively, the NOPR sought comment on whether NERC should be responsible for installation of any additional, necessary magnetometers while affected entities would be responsible for installation of additional, necessary GIC monitors. The NOPR also proposed that, as part of NERC's work plan, NERC identify the number and location of current GIC monitors and magnetometers in the United States to assess whether there are any gaps. The NOPR sought comment on whether the Commission should adopt a policy specifically allowing recovery of costs associated with or incurred to comply with Reliability Standard TPL-007-1, including for the purchase and installation of monitoring devices.

    Comments

    84. NERC does not support the NOPR proposal regarding the installation of GIC monitoring devices and magnetometers. NERC contends that the proposed requirement is not necessary because Reliability Standard TPL-007-1 “supports effective GMD monitoring programs, and additional efforts are planned or underway to ensure adequate data for reliability purposes.” 114 NERC also maintains that the proposed directive “poses implementation challenges . . . [because] GMD monitoring capabilities and technical information have not yet reached a level of maturity to support application in a Reliability Standard, and not all applicable entities have developed the comprehensive understanding of system vulnerabilities that would be needed to deploy GMD monitoring devices for the greatest reliability benefit.” 115 NERC also notes that a requirement mandating the installation of monitoring devices for situational awareness purposes would be outside the scope of a planning Reliability Standard.

    114 NERC Comments at 21. NERC cites as examples the 40 GIC monitoring nodes operated by EPRI's SUNBURST network; the use of GIC monitoring devices by some registered entities (e.g., PJM); and the magnetometer networks operated by USGS and EPRI. Id. at 23-25.

    115Id.

    85. The Trade Associations, CEA, ITC, Hydro One and Tri-State, while agreeing that more data are useful to analytical validation and situational awareness, do not support the NOPR proposal. CEA does not support the proposal because Reliability Standard TPL-007-1 is a planning standard; a one-size-fits-all monitoring approach will not work; the responsibility for monitoring, which in Canada is done by the Canadian government, should not fall to industry or NERC; and the proposal is too costly. Likewise, ITC contends that it would not be prudent or cost effective for entities to have to install monitoring equipment. Hydro One does not support a Reliability Standard that prescribes the number and location of monitoring devices that must be installed. The Trade Associations and ITC, instead, support directing NERC to develop a plan to address this issue. The Trade Associations state that such a plan should involve a partnership between government and industry. Tri-State maintains that NERC, working with USGS and NOAA, should be responsible for determining the need for and installation of any needed magnetometers. If the Commission requires applicable entities to install monitoring devices, the Trade Associations, Tri-State and Exelon agree that there should be cost recovery.

    86. BPA supports the NOPR proposal for increased monitoring because BPA believes it will improve situational awareness. As a model, BPA states that the “Canadian government in collaboration with Canadian transmission owners” have developed a “technique that shows real promise of increasing visibility of GIC flows and localized impacts for a regional transmission grid.” 116 AEP encourages the Commission to expand the “number and scope of the permanent geomagnetic observatories and install permanent geoelectric observatories in the United States.” 117

    116 BPA Comments at 4.

    117 AEP March 29, 2016 Supplemental Comments at 1.

    87. Resilient Societies supports requiring the installation of GIC monitoring devices and magnetometers, noting that GIC monitors are commercially available and cost as little as $10,000 to $15,000 each. Emprimus supports developing criteria that inform the need for and location of monitoring devices.

    Commission Determination

    88. We conclude that additional collection and disclosure of GIC monitoring and magnetometer data is necessary to improve our collective understanding of the threats posed by GMD events. The Commission therefore adopts the NOPR proposal in relevant part and directs NERC to develop revisions to Reliability Standard TPL-007-1 to require responsible entities to collect GIC monitoring and magnetometer data as necessary to enable model validation and situational awareness, including from any devices that must be added to meet this need. The NERC standard drafting team should address the criteria for collecting GIC monitoring and magnetometer data discussed below and provide registered entities with sufficient guidance in terms of defining the data that must be collected, and NERC should propose in the GMD research work plan how it will determine and report on the degree to which industry is following that guidance.

    89. In addition, the Commission directs NERC, pursuant to Section 1600 of the NERC Rules of Procedure, to collect GIC monitoring and magnetometer data from registered entities for the period beginning May 2013, including both data existing as of the date of this order and new data going forward, and to make that information available.118 We also provide guidance that, as a general matter, the Commission does not believe that GIC monitoring and magnetometer data should be treated as Confidential Information pursuant to the NERC Rules of Procedure.

    118 The Commission's directives to collect and make available GIC monitoring and magnetometer data do not apply to non-U.S. responsible entities or Alaska and Hawaii.

    Collection of GIC and Magnetometer Data

    90. In developing a requirement regarding the collection of magnetometer data, NERC should consider the following criteria discussed at the March 1, 2016 Technical Conference: (1) The data is sampled at a cadence of at least 10-seconds or faster; (2) the data comes from magnetometers that are physically close to GIC monitors; (3) the data comes from magnetometers that are not near sources of magnetic interference (e.g., roads and local distribution networks); and (4) data is collected from magnetometers spread across wide latitudes and longitudes and from diverse physiographic regions.119

    119 Slide Presentation of Luis Marti (Third Panel), March 1, 2016 Technical Conference at 3, 9.

    91. Each responsible entity that is a transmission owner should be required to collect necessary GIC monitoring data. However, a transmission owner should be able to apply for an exemption from the GIC monitoring data collection requirement if it demonstrates that no or little value would be added to planning and operations. In developing a requirement regarding the collection of GIC monitoring data, NERC should consider the following criteria discussed at the March 1, 2016 Technical Conference: (1) The GIC data is from areas found to have high GIC based on system studies; (2) the GIC data comes from sensitive installations and key parts of the transmission grid; and (3) the data comes from GIC monitors that are not situated near transportation systems using direct current (e.g., subways or light rail).120 GIC monitoring and magnetometer locations should also be revisited after GIC system models are run with improved ground conductivity models. NERC may also propose to incorporate the GIC monitoring and magnetometer data collection requirements in a different Reliability Standard (e.g., real-time reliability monitoring and analysis capabilities as part of the TOP Reliability Standards).

    120Id. at 8.

    92. Our determination differs from the NOPR proposal in that the NOPR proposed to require the installation of GIC monitors and magnetometers. The comments raised legitimate concerns about incorporating such a requirement in Reliability Standard TPL-007-1 because of the complexities of siting and operating monitoring devices to achieve the maximum benefits for model validation and situational awareness. In particular, responsible entities may not have the technical capacity to properly install and operate magnetometers, given complicating issues such as man-made interference, calibration, and data interpretation. Accordingly, the Commission determines that requiring responsible entities to collect necessary GIC monitoring and magnetometer data, rather than install GIC monitors and magnetometers, affords greater flexibility while obtaining significant benefits. For example, responsible entities could collaborate with universities and government entities that operate magnetometers to collect necessary magnetometer data, or responsible entities could choose to install GIC monitors or magnetometers to comply with the data collection requirement. While the Commission's primary concern is the quality of the data collected, we do not establish a requirement for either approach or promote a particular device for collecting the required data. We also find that cost recovery for prudent costs associated with or incurred to comply with Reliability Standard TPL-007-1 and future revisions to the Reliability Standard, including for the purchase and installation of monitoring devices, will be available to registered entities.121

    121 NOPR, 151 FERC ¶ 61,134 at P 49 n.60.

    Data Availability

    93. We also direct NERC, pursuant to Sections 1500 and 1600 of the NERC Rules of Procedure, to collect and make GIC monitoring and magnetometer data available.122 We determine that the dissemination of GIC monitoring and magnetometer data will facilitate a greater understanding of GMD events that, over time, will improve Reliability Standard TPL-007-1. The record in this proceeding supports the conclusion that access to GIC monitoring and magnetometer data will help facilitate GMD research, for example, by helping to validate GMD models.123 To facilitate the prompt dissemination of GIC monitoring and magnetometer data, we address whether GIC monitoring or magnetometer data should qualify as Confidential Information under the NERC Rules of Procedure.124

    122 If GIC monitoring and magnetometer data is already publicly available (e.g., from a government entity or university), NERC need not duplicate those efforts.

    123See, e.g., March 1, 2016 Technical Conference Tr. 58:22-59:13 (Love); 128:5-129:2 (Overbye); ATC Comments at 6-7 (“as more measuring devices (including magnetometers and GIC monitors) continue to propagate, the body of field data on magnetic fields and the resultant GICs will continue to increase the understanding of this phenomena and result in better models that more closely match real world conditions . . . [a]bsent this field data, it is difficult to build accurate models that can be used to plan and operate the transmission system”).

    124 Providers of GIC and magnetometer data may request that NERC treat their GIC monitoring and magnetometer data as “Confidential Information,” as that term is defined in Section 1500 of the NERC Rules of Procedure. Under the NERC Rules of Procedure, disclosure of Confidential Information by NERC to a requester requires a formal request, notice and opportunity for comment, and an executed non-disclosure agreement for requesters not seeking public disclosure of the information. NERC Rules of Procedure, Section 1503 (Requests for Information) (effective Nov. 4, 2015).

    94. Based on the record in this proceeding, we believe that GIC and magnetometer data typically should not be designated as Confidential Information under the NERC Rules of Procedure. We are not persuaded that the dissemination of GIC monitoring or magnetometer data poses a security risk or that the data otherwise qualify as Confidential Information. CEA and Hydro One have objected, without elaboration, to making data available without the use of non-disclosure agreements.125 At the March 1, 2016 Technical Conference, panelists were questioned on the topic yet could not identify a security-based or other credible reason for not making such information available to requesters. In comments submitted after the March 1, 2016 Technical Conference, the Trade Associations explained that “GIC measurements, while not as sensitive as transmission planning studies, should also be protected . . . [because a] potentially malicious actor could conceivably combine GIC information with information from other sources to deduce the configuration and operating conditions of the grid or some portion of it.” 126 The Trade Associations' comments, however, do not substantiate the assertion that the release of GIC monitoring (or magnetometer data) alone poses any risk to the Bulk-Power System. The Trade Associations' comment is also vague by not identifying what “information from other sources” could be combined with GIC monitoring “to deduce the configuration and operating conditions of the grid or some portion of it.”

    125 CEA Comments at 15; Hydro One Comments at 2.

    126 Trade Associations March 7, 2016 Supplemental Comments at 5.

    95. In conclusion, given both the lack of substantiated concerns regarding the disclosure of GIC and magnetometer data, and the compelling demonstration that access to these data will support ongoing research and analysis of GMD threats, the Commission expects NERC to make GIC and magnetometer data available. Notwithstanding our findings here, to the extent any entity seeks confidential treatment of the data it provides to NERC, the burden rests on that entity to justify the confidential treatment.127 Exceptions are possible if the providing entity obtains from NERC, at the time it submits data to NERC, a determination that GIC or magnetometer data qualify as Confidential Information.128 Entities denied access to GIC and magnetometer data by NERC or providers denied Confidential Information treatment of GIC and magnetometer data may appeal NERC's decision to the Commission.

    127See NERC Rules of Procedure, Section 1502.1. To address any substantiated concerns regarding the need for confidentiality of an entity's GIC or magnetometer data, NERC could develop a policy for disseminating such data only after an appropriate time interval (e.g., six months).

    128 We understand that NERC typically does not determine whether information submitted to it under a claim of confidentiality is Confidential Information when receiving such information. See North American Electric Reliability Corp., 119 FERC ¶ 61,060, at PP 195-196 (2007). We expect that, when a submitter seeks a determination by NERC of a claim that GIC or magnetometer data qualify as Confidential Information, NERC will decide promptly.

    E. Corrective Action Plan Deadlines NERC Petition

    96. Reliability Standard TPL-007-1, Requirement R7 provides that:

    Each responsible entity, as determined in Requirement R1, that concludes, through the GMD Vulnerability Assessment conducted in Requirement R4, that their System does not meet the performance requirements of Table 1 shall develop a Corrective Action Plan addressing how the performance requirements will be met . . . .

    NERC explains that the NERC Glossary defines corrective action plan to mean, “A list of actions and an associated timetable for implementation to remedy a specific problem.” 129 Requirement R7.3 states that the corrective action plan shall be provided within “90 calendar days of completion to the responsible entity's Reliability Coordinator, adjacent Planning Coordinator(s), adjacent Transmission Planner(s), functional entities referenced in the Corrective Action Plan, and any functional entity that submits a written request and has a reliability-related need.”

    129 NERC Petition at 31.

    NOPR

    97. The NOPR proposed to direct NERC to modify Reliability Standard TPL-007-1 to require corrective action plans to be developed within one year of the completion of the GMD Vulnerability Assessment. The NOPR also proposed to direct NERC to modify Reliability Standard TPL-007-1 to require a deadline for non-equipment mitigation measures that is two years following development of the corrective action plan and a deadline for mitigation measures involving equipment installation that is four years following development of the corrective action plan. Recognizing that there is little experience with installing equipment for GMD mitigation, the NOPR stated that the Commission is open to proposals that may differ from its proposal, particularly from any entities with experience in this area. The NOPR also sought comment on appropriate alternative deadlines and whether there should be a mechanism that would allow NERC to consider, on a case-by-case basis, requests for extensions of required deadlines.

    Comments

    98. NERC states that it does not oppose a one-year deadline for completing the development of corrective action plans.130 However, NERC contends that imposing deadlines on the completion of mitigation actions would be problematic because of the uncertainties regarding the amount of time needed to install necessary equipment. NERC maintains that deadlines that are too short may cause entities to take mitigation steps that, while quicker, would not be as effective as mitigations that take more time to complete. NERC supports allowing extensions if the Commission adopts the NOPR proposal.

    130 NERC contends that a deadline is unnecessary because “NERC expects that applicable entities would determine necessary corrective actions as part of their GMD Vulnerability Assessments for the initial assessment [due 60 months after a final rule in this proceeding goes into effect] as well as subsequent assessments [due every 60 months thereafter].” NERC Comments at 28.

    99. AEP states that, even if possible, a one-year deadline for developing corrective action plans is too aggressive and would encourage narrow thinking (i.e., registered entities would address GMD mitigation rather than pursue system improvements generally that would also address GMD mitigation). AEP, instead, proposes a two-year deadline. AEP does not support a Commission-imposed deadline for completing mitigation actions, although it supports requiring a time-table in the corrective action plan. AEP notes that the Commission did not impose a specific deadline for completion of corrective actions in Reliability Standard TPL-001-4 (Transmission System Planning Performance). CEA does not support a deadline for the development of corrective action plans because it is already part of the GMD Vulnerability Assessment process. Like AEP, CEA does not support specific deadlines for the completion of mitigation actions and instead supports including time-tables in the corrective action plan. CEA also contends that an extension process would be impracticable.

    100. Trade Associations, BPA and Tri-State support the imposition of corrective action plan deadlines as long as entities can request extensions. Gaunt supports the corrective action plan deadlines proposed in the NOPR. Emprimus supports the imposition of deadlines but contends that non-equipment mitigation actions should be completed in 6 months and that there should be a rolling four-year period for equipment mitigation (i.e., after each year, 25 percent of the total mitigation actions should be completed).

    Commission Determination

    101. The Commission directs NERC to modify Reliability Standard TPL-007-1 to include a deadline of one year from the completion of the GMD Vulnerability Assessments to complete the development of corrective action plans. NERC's statement that it “expects” corrective action plans to be completed at the same time as GMD Vulnerability Assessments concedes the point made in the NOPR that Reliability Standard TPL-007-1 currently lacks a clear deadline for the development of corrective action plans.

    102. The Commission also directs NERC to modify Reliability Standard TPL-007-1 to include a two-year deadline after the development of the corrective action plan to complete the implementation of non-hardware mitigation and four-year deadline to complete hardware mitigation. The comments provide contrasting views on the practicality of imposing mitigation deadlines, with NERC and some industry commenters arguing that such deadlines are not warranted while the Trade Associations and other industry commenters support their imposition. Most of these comments, however, support an extension process if the Commission determines that deadlines are necessary. The Commission agrees that NERC should consider extensions of time on a case-by-case basis. The Commission directs NERC to submit these revisions within 18 months of the effective date of this Final Rule.

    103. Following adoption of the mitigation deadlines required in this final rule, Reliability Standard TPL-007-1 will establish a recurring five-year schedule for the identification and mitigation of potential GMD risks on the grid, as follows: (1) The development of corrective action plans must be completed within one year of a GMD Vulnerability Assessment; (2) non-hardware mitigation must be completed within two years following development of corrective action plans; and (3) hardware mitigation must be completed within four years following development of corrective action plans.

    104. As discussed elsewhere in this final rule, the Commission recognizes and expects that our collective understanding of the science regarding GMD threats will improve over time as additional research and analysis is conducted. We believe that the recurring five-year cycle will provide, on a going-forward basis, the opportunity to update Reliability Standard TPL-007-1 to reflect new or improved scientific understanding of GMD events.

    F. Minimization of Load Loss and Curtailment NERC Petition

    105. Reliability Standard TPL-007-1, Requirement R4 states that each responsible entity “shall complete a GMD Vulnerability Assessment of the Near-Term Transmission Planning Horizon once every 60 calendar months.” Requirement R4.2 further states that the “study or studies shall be conducted based on the benchmark GMD event described in Attachment 1 to determine whether the System meets the performance requirements in Table 1.”

    106. NERC maintains that Table 1 sets forth requirements for system steady state performance. NERC explains that Requirement R4 and Table 1 “address assessments of the effects of GICs on other Bulk‐Power System equipment, system operations, and system stability, including the loss of devices due to GIC impacts.” 131 Table 1 provides, in relevant part, that load loss and/or curtailment are permissible elements of the steady state:

    131 NERC Petition at 39.

    Load loss as a result of manual or automatic Load shedding (e.g. UVLS) and/or curtailment of Firm Transmission Service may be used to meet BES performance requirements during studied GMD conditions. The likelihood and magnitude of Load loss or curtailment of Firm Transmission Service should be minimized.

    NOPR

    107. The NOPR sought comment on the provision in Table 1 that “Load loss or curtailment of Firm Transmission Service should be minimized.” The NOPR stated that because the term “minimized” does not represent an objective value, the provision is potentially subject to interpretation and assertions that the term is vague and may not be enforceable. The NOPR also explained that the modifier “should” might indicate that minimization of load loss or curtailment is only an expectation or a guideline rather than a requirement. The NOPR sought comment on how the provision in Table 1 regarding load loss and curtailment will be enforced, including: (1) Whether, by using the term “should,” Table 1 requires minimization of load loss or curtailment; or both and (2) what constitutes “minimization” and how it will be assessed.

    Comments

    108. NERC states the language in Table 1 is modeled on Reliability Standard TPL-001-4, which provides in part that “an objective of the planning process should be to minimize the likelihood and magnitude of interruption of Firm transmission Service following Contingency events.” NERC explains that Reliability Standard TPL-007-1 “does not include additional load loss performance criteria used in normal contingency planning because such criteria may not be applicable to GMD Vulnerability Assessment of the impact from a 1-in-100 year GMD event.” 132 However, NERC points out that the enforcement of Requirement R4 “would include an evaluation of whether the system meets the Steady State performance requirements of Table 1 which are aimed at protecting against instability, controlled separation, and Cascading.” 133 NERC further states that “minimized” in the context of Reliability Standard TPL-007-1 means that “planned Load loss or curtailments are not to exceed amounts necessary to prevent voltage collapse.” 134

    132 NERC Comments at 29.

    133Id.

    134Id.

    109. The Trade Associations agree with the NOPR that the lack of objective criteria could create compliance and enforcement challenges and could limit an operator's actions in real-time. The Trade Associations state that the Commission “should consider whether such language in mandatory requirements invites the unintended consequences of raising reliability risks, especially during real-time emergency conditions . . . [but] [i]n the interim, the Trade Associations envision that NERC will consider further discussions with stakeholders on the issue prior to TPL-007 implementation.” 135

    135 Trade Associations Comments at 28.

    Commission Determination

    110. The Commission accepts the explanation in NERC's comments of what is meant by the term “minimized” in Table 1.

    G. Violation Risk Factors and Violation Severity Levels

    111. Each requirement of Reliability Standard TPL-007-1 includes one violation risk factor and has an associated set of at least one violation severity level. NERC states that the ranges of penalties for violations will be based on the sanctions table and supporting penalty determination process described in the Commission approved NERC Sanction Guidelines. The NOPR proposed to approve the violation risk factors and violation severity levels submitted by NERC, for the requirements in Reliability Standard TPL-007-1, consistent with the Commission's established guidelines.136 The Commission did not receive any comments regarding this aspect of the NOPR. Accordingly, the Commission approves the violation risk factors and violation severity levels for the requirements in Reliability Standard TPL-007-1.

    136North American Electric Reliability Corp., 135 FERC ¶ 61,166 (2011).

    H. Implementation Plan and Effective Dates NERC Petition

    112. NERC proposes a phased, five-year implementation period.137 NERC maintains that the proposed implementation period is necessary: (1) To allow time for entities to develop the required models; (2) for proper sequencing of assessments because thermal impact assessments are dependent on GIC flow calculations that are determined by the responsible planning entity; and (3) to give time for development of viable corrective action plans, which may require applicable entities to “develop, perform, and/or validate new or modified studies, assessments, procedures . . . [and because] [s]ome mitigation measures may have significant budget, siting, or construction planning requirements.” 138

    137 NERC Petition, Ex. B (Implementation Plan for TPL-007-1).

    138Id. at 2.

    113. The proposed implementation plan states that Requirement R1 shall become effective on the first day of the first calendar quarter that is six months after Commission approval. For Requirement R2, NERC proposes that the requirement shall become effective on the first day of the first calendar quarter that is 18 months after Commission approval. NERC proposes that Requirement R5 shall become effective on the first day of the first calendar quarter that is 24 months after Commission approval. NERC proposes that Requirement R6 shall become effective on the first day of the first calendar quarter that is 48 months after Commission approval. And for Requirement R3, Requirement R4, and Requirement R7, NERC proposes that the requirements shall become effective on the first day of the first calendar quarter that is 60 months after Commission approval.

    NOPR

    114. The NOPR proposed to approve the implementation plan and effective dates submitted by NERC. However, given the serial nature of the requirements in Reliability Standard TPL-007-1, the Commission expressed concern about the duration of the timeline associated with any mitigation stemming from a corrective action plan and sought comment from NERC and other interested entities as to whether the length of the implementation plan, particularly with respect to Requirements R4, R5, R6, and R7, could be reasonably shortened.

    Comments

    115. NERC does not support shortening the implementation period. NERC maintains that the proposed implementation period is “appropriate and commensurate with the requirements of the proposed standard” and is based on “industry . . . projections on the time required for obtaining validated tools, models and data necessary for conducting GMD Vulnerability Assessments through the standard development process.” 139 NERC notes that the standard drafting team initially proposed a four-year implementation plan, but received substantial comments expressing concern with only having four years.

    139 NERC Comments at 30.

    116. The Trade Associations, BPA, CEA, Joint ISOs/RTOs and Tri-State support the proposed implementation plan for largely the same reasons as NERC.

    117. Gaunt proposes a shorter implementation period wherein the initial GMD Vulnerability Assessment would be performed 48 months following the effective date of a final rule in this proceeding, as opposed to the proposed implementation plan's 60 months. Subsequent GMD Vulnerability Assessments would be performed every 48 months thereafter. Briggs states that a “3 or 4 year timeline would likely provide industry with enough time to implement corrective measures and should be considered.” 140

    140 Briggs Comments at 7.

    Commission Determination

    118. The Commission approves the implementation plan submitted by NERC. When registered entities begin complying with Reliability Standard TPL-007-1, it will likely be the first time that many registered entities will have planned for a GMD event, beyond developing the GMD operational procedures required by Reliability Standard EOP-010-1. Registered entities will gain the capacity to conduct GMD Vulnerability Assessments over the course of the five-year implementation plan by complying with, at phased intervals, the foundational requirements in Reliability Standard TPL-007-1 (i.e., establishing responsibilities for planning and developing models and performance criteria). In addition, as discussed above, NERC's implementation plan affords sufficient time for NERC to submit and for the Commission to consider the directed revisions to Reliability Standard TPL-007-1 before the completion of the first GMD Vulnerability Assessment. As such, the five-year implementation plan will allow for the incorporation of the revised Reliability Standard in the first round of GMD Vulnerability Assessments.

    I. Other Issues

    119. Several commenters indicated that the Commission should address the threats posed by EMPs or otherwise raised the issue of EMPs.141 For example, Briggs states that the Commission should “initiate a process to improve the resilience of the U.S. electric grid to the threat of high altitude electromagnetic pulse (HEMP) attacks, which can be more severe than solar superstorms.” 142 However, as the Commission stated in Order No. 779 in directing the development of GMD Reliability Standards and in Order No. 797 in approving the First Stage GMD Reliability Standards, EMPs are not within the scope of the GMD rulemaking proceedings.143

    141See Briggs Comments at 7; EIS Comments at 3; JINSA Comments at 2.

    142 Briggs Comments at 7.

    143 Order No. 797, 147 FERC ¶ 61,209 at P 42 (citing Order No. 779, 143 FERC ¶ 61,147 at P 14 n.20).

    120. Holdeman contends that the Commission “should modify the current preemption of States preventing them from having more stringent reliability standards for Commission regulated entities than Commission standards.” 144 As the Commission indicated in response to similar comments in Order No. 797, section 215(i)(3) of the FPA provides in relevant part that section 215 does not “preempt any authority of any State to take action to ensure the safety, adequacy, and reliability of electric service within that State, as long as such action is not inconsistent with any reliability standard.” 145 Moreover, Reliability Standard TPL-007-1 does not preclude users, owners, and operators of the Bulk-Power System from taking additional steps that are designed to mitigate the effects of GMD events, provided those additional steps are not inconsistent with the Commission-approved Reliability Standards.

    144 Holdeman Comments at 2.

    145 Order No. 797, 147 FERC ¶ 61,209 at P 44 (citing 16 U.S.C. 824o(i)(3)).

    121. Certain commenters opposed to Reliability Standard TPL-007-1 contend that its approval could absolve industry of any legal liability should a GMD event cause a disruption to the Bulk-Power System. For example, Resilient Societies “ask[s] the Commission to clarify its expectation that the FERC jurisdictional entities will be held to account, and be subject to liability in the event of gross negligence or willful misconduct in planning for and mitigating solar geomagnetic storms.” 146 Resilient Societies also contends that the Commission does not have the legal authority “to grant immunity from liability by setting reliability standards.” 147

    146 Resilient Societies Comments at 62; see also CSP Comments at 1 (“It would be far better for FERC to remand Standard TPL-007-1 in its entirety than to approve a reliability standard that would grant liability protection to utilities while blocking the electric grid protection for the public that a 21st century society requires.”).

    147 Resilient Societies Comments at 62.

    122. The Commission has never stated in the GMD Reliability Standard rulemakings that compliance with Commission-approved Reliability Standards absolves registered entities from legal liability generally, to the extent legal liability exists, should a disruption occur on the Bulk-Power System due to a GMD event. Resilient Societies' comment appears to misconstrue language in Order No. 779 in which the Commission stated, when directing the development of the Second Stage GMD Reliability Standards, that the “Second Stage GMD Reliability Standard should not impose `strict liability' on responsible entities for failure to ensure the reliability operation of the Bulk-Power System in the face of a GMD event of unforeseen severity.” 148 The Commission's statement merely recognized that the Second Stage GMD Reliability Standard should require registered entities to plan against a defined benchmark GMD event, for the purpose of complying with the proposed Reliability Standard, rather than any GMD event generally (i.e., a GMD event that exceeded the severity of the benchmark GMD event). The Commission did not suggest, nor could it suggest, that compliance with a Reliability Standard would absolve registered entities from general legal liability, if any, arising from a disruption to the Bulk-Power System. The only liability the Commission was referring to in Order No. 779 was the potential for penalties or remediation under section 215 of the FPA for failure to comply with a Commission-approved Reliability Standard.

    148 Order No. 779, 143 FERC ¶ 61,147 at P 84.

    123. Kappenman, Resilient Societies and Bardin filed comments that addressed the NERC “Level 2” Appeal Panel decision.149 As a threshold issue, we agree with the Appeal Panel that the issues raised by the appellants in that proceeding are not procedural; instead they address the substantive provisions of Reliability Standard TPL-007-1. Section 8 (Process for Appealing an Action or Inaction) of the NERC Standards Process Manual states:

    149 NERC August 17, 2015 Filing at Appendix 1 (Decision of Level 2 Appeal Panel SPM Section 8 Appeal the Foundation For Resilient Societies, Inc. TPL-007-1).

    Any entity that has directly and materially affected interests and that has been or will be adversely affected by any procedural action or inaction related to the development, approval, revision, reaffirmation, retirement or withdrawal of a Reliability Standard, definition, Variance, associated implementation plan, or Interpretation shall have the right to appeal. This appeals process applies only to the NERC Reliability Standards processes as defined in this manual, not to the technical content of the Reliability Standards action.

    The appellants, who have the burden of proof under the NERC Rules of Procedure, have not shown that NERC or the standard drafting team failed to comply with any procedural requirements set forth in the NERC Rules of Procedure.150 Instead, it would appear that the appeal constitutes a collateral attack on the substantive provisions of Reliability Standard TPL-007-1. As the appellants' substantive concerns with Reliability Standard TPL-007-1 have been addressed in this Final Rule, issues surrounding the NERC “Level 2” Appeal Panel decision are, in any case, moot.

    150 NERC Rules of Procedure, Appendix 3A (Standard Processes Manual), Section 8 (Process for Appealing an Action or Inaction) (effective June 26, 2013).

    III. Information Collection Statement

    124. The collection of information contained in this final rule is subject to review by the Office of Management and Budget (OMB) regulations under section 3507(d) of the Paperwork Reduction Act of 1995 (PRA).151 OMB's regulations require approval of certain informational collection requirements imposed by agency rules.152

    151 44 U.S.C. 3507(d).

    152 5 CFR 1320.11.

    125. Upon approval of a collection(s) of information, OMB will assign an OMB control number and an expiration date. Respondents subject to the filing requirements of a rule will not be penalized for failing to respond to these collections of information unless the collections of information display a valid OMB control number.

    126. The Commission solicited comments on the need for this information, whether the information will have practical utility, the accuracy of the burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected or retained, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques. The Commission asked that any revised burden or cost estimates submitted by commenters be supported by sufficient detail to understand how the estimates are generated. The Commission received comments on specific requirements in Reliability Standard TPL-007-1, which we address in this Final Rule. However, the Commission did not receive any comments on our reporting burden estimates or on the need for and the purpose of the information collection requirements.153

    153 While noting the uncertainties surrounding the potential costs associated with implementation of Reliability Standard TPL-007-1 and the potential costs that could arise from a revised Reliability Standard, the Trade Associations stated that they “have no specific comments regarding the OMB cost estimate in the NOPR.” Trade Associations Comments at 9.

    Public Reporting Burden: The Commission approves Reliability Standard TPL-007-1 and the associated implementation plan, violation severity levels, and violation risk factors, as discussed above. Reliability Standard TPL-007-1 will impose new requirements for transmission planners, planning coordinators, transmission owners, and generator owners. Reliability Standard TPL-007-1, Requirement R1 requires planning coordinators, in conjunction with the applicable transmission planner, to identify the responsibilities of the planning coordinator and transmission planner in the planning coordinator's planning area for maintaining models and performing the study or studies needed to complete GMD Vulnerability Assessments. Requirements R2, R3, R4, R5, and R7 refer to the “responsible entity, as determined by Requirement R1,” when identifying which applicable planning coordinators or transmission planners are responsible for maintaining models and performing the necessary study or studies. Requirement R2 requires that the responsible entities maintain models for performing the studies needed to complete GMD Vulnerability Assessments, as required in Requirement R4. Requirement R3 requires responsible entities to have criteria for acceptable system steady state voltage performance during a benchmark GMD event. Requirement R4 requires responsible entities to complete a GMD Vulnerability Assessment of the near-term transmission planning horizon once every 60 calendar months. Requirement R5 requires responsible entities to provide GIC flow information to transmission owners and generator owners that own an applicable bulk electric system power transformer in the planning area. This information is necessary for applicable transmission owners and generator owners to conduct the thermal impact assessments required by proposed Requirement R6. Requirement R6 requires applicable transmission owners and generator owners to conduct thermal impact assessments where the maximum effective GIC value provided in proposed Requirement R5, Part 5.1 is 75 A/phase or greater. Requirement R7 requires responsible entities to develop a corrective action plan when its GMD Vulnerability Assessment indicates that its system does not meet the performance requirements of Table 1—Steady State Planning Events. The corrective action plan must address how the performance requirements will be met, must list the specific deficiencies and associated actions that are necessary to achieve performance, and must set forth a timetable for completion. The Commission estimates the annual reporting burden and cost as follows:

    FERC-725N, as Modified by the Final Rule in Docket No. RM15-11-000 [TPL-007-1 Reliability Standard for Transmission System Planned Performance for Geomagnetic Disturbance Events] 154 Number of
  • respondents
  • Annual
  • number of
  • responses per respondent
  • Total number of responses Average burden hours & cost per
  • response 155
  • Total annual burden hours & total annual cost Cost per
  • respondent
  • ($)
  • (1) (2) (1) * (2) = (3) (4) (3) * (4) = (5) (5) ÷ (1) (One-time) Requirement 1 121 (PC & TP) 1 121 Eng. 5 hrs. ($331.75); RK 4 hrs. ($149.80) 1,089 hrs. (605 Eng., 484 RK); $58,267.55 ($40,141.75 Eng., $18,125.80 RK) $481.55 (On-going) Requirement 1 121 (PC & TP) 1 121 Eng. 3 hrs. ($199.05); RK 2 hrs. ($74.90) 605 hrs. (363 Eng., 242 RK); $33,147.95 ($24,085.05 Eng., $9,062.90 RK) 273.95 (One-time) Requirement 2 121 (PC & TP) 1 121 Eng. 22 hrs. ($1,459.70); RK 18 hrs. ($674.10) 4840 hrs. (2,662 Eng., 2,178 RK); $258,189.80 ($176,623.70 Eng., $81,566.10 RK) 2,133.80 (On-going) Requirement 2 121 (PC & TP) 1 121 Eng. 5 hrs. ($331.75); RK 3 hrs. ($112.35) 968 hrs. (605 Eng., 363 RK); $53,736.10 ($40,141.75 Eng., $13,594.35 RK) 444.10 (One-time) Requirement 3 121 (PC & TP) 1 121 Eng. 5 hrs. ($331.75); RK 3 hrs. ($112.35) 968 hrs. (605 Eng., 363 RK); $53,736.10 ($40,141.75 Eng., $13,594.35 RK) 444.10 (On-going) Requirement 3 121 (PC & TP) 1 121 Eng. 1 hrs. ($66.35);RK 1 hrs. ($37.45) 242 hrs. (121 Eng., 121 RK); $12,559.80 ($8,028.35 Eng., $4,531.45 RK) 103.80 (On-going) Requirement 4 121 (PC & TP) 1 121 Eng. 27 hrs. ($1,791.45); RK 21 hrs. ($786.45) 5,808 hrs. (3,267 Eng., 2,541 RK); $311,919.85 ($216,765.45 Eng., $95,154.40 RK) 2,277.85 (On-going) Requirement 5 121 (PC & TP) 1 121 Eng. 9 hrs. ($597.15); RK 7 hrs. ($262.15) 1936 hrs. (1,089 Eng., 847 RK); $103,975.30 ($72,255.15 Eng., $31,720.15 RK) 859.30 (One-time) Requirement 6 881 (TO & GO) 1 881 Eng. 22 hrs. ($1,459.70); RK 18 hrs. ($674.19) 35,240 hrs. (19,382 Eng., 15,858 RK); $1,879,957.09 ($1,285,995.70 Eng., $593,961.39 RK) 2,133.89 (On-going) Requirement 6 881 (TO & GO) 1 881 Eng. 2 hrs. ($132.70); RK 2 hrs. ($74.90) 3,524 hrs. (1,762 Eng., 1762 RK); $182,895.60 ($116,908.70 Eng., $65,986.90 RK) 207.60 (On-going) Requirement 7 121 (PC & TP) 1 121 Eng. 11 hrs. ($729.85); RK 9 hrs. ($337.05) 2,420 hrs. (1,331 Eng., 1,089 RK); $129,094.90 ($88,311.85 Eng., $40,783.05 RK) 1,066.90 Total 2851 57,640 156 hrs. (31,792 Eng., 25,848 RK); $3,077,480.04 ($2,109,399.20 Eng., $968,080.84 RK)

    Title: FERC-725N, Mandatory Reliability Standards: TPL Reliability Standards.

    154 Eng.=engineer; RK =recordkeeping (record clerk); PC=planning coordinator; TP=transmission planner; TO=transmission owner; and GO=generator owner.

    155 The estimates for cost per response are derived using the following formula: Burden Hours per Response * $/hour = Cost per Response. The $66.35/hour figure for an engineer and the $37.45/hour figure for a record clerk are based on data on the average salary plus benefits from the Bureau of Labor Statistics obtainable at http://www.bls.gov/oes/current/naics3_221000.htm and http://www.bls.gov/news.release/ecec.nr0.htm.

    156 Of the 57,640 total burden hours, 42,137 hours are one-time burden hours, and 15,503 hours are on-going annual burden hours.

    Action: Approved Additional Requirements.

    OMB Control No: 1902-0264.

    Respondents: Business or other for-profit and not-for-profit institutions.

    Frequency of Responses: One time and on-going.

    Necessity of the Information: The Commission has reviewed the requirements of Reliability Standard TPL-007-1 and has made a determination that the requirements of this Reliability Standard are necessary to implement section 215 of the FPA. Specifically, these requirements address the threat posed by GMD events to the Bulk-Power System and conform to the Commission's directives regarding development of the Second Stage GMD Reliability Standards, as set forth in Order No. 779.

    Internal review: The Commission has assured itself, by means of its internal review, that there is specific, objective support for the burden estimates associated with the information requirements.

    127. Interested persons may obtain information on the reporting requirements by contacting the Federal Energy Regulatory Commission, Office of the Executive Director, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, e-mail: [email protected], phone: (202) 502-8663, fax: (202) 273-0873].

    128. Comments concerning the information collections in this final rule and the associated burden estimates, should be sent to the Commission in this docket and may also be sent to the Office of Management and Budget, Office of Information and Regulatory Affairs [Attention: Desk Officer for the Federal Energy Regulatory Commission]. For security reasons, comments should be sent by e-mail to OMB at the following e-mail address: [email protected] Please reference FERC-725N and OMB Control No. 1902-0264 in your submission.

    IV. Environmental Analysis

    129. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.157 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment. Included in the exclusion are rules that are clarifying, corrective, or procedural or that do not substantially change the effect of the regulations being amended.158 The actions here fall within this categorical exclusion in the Commission's regulations.

    157Regulations Implementing the National Environmental Policy Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. Preambles 1986-1990 ¶ 30,783 (1987).

    158 18 CFR 380.4(a)(2)(ii).

    V. Regulatory Flexibility Act

    130. The Regulatory Flexibility Act of 1980 (RFA) 159 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. The Small Business Administration's (SBA) Office of Size Standards develops the numerical definition of a small business.160 The SBA revised its size standard for electric utilities (effective January 22, 2014) to a standard based on the number of employees, including affiliates (from a standard based on megawatt hours).161 Under SBA's new size standards, planning coordinators, transmission planners, transmission owners, and generator owners are likely included in one of the following categories (with the associated size thresholds noted for each): 162

    159 5 U.S.C. 601-12.

    160 13 CFR 121.101.

    161 SBA Final Rule on “Small Business Size Standards: Utilities,” 78 FR 77,343 (Dec. 23, 2013).

    162 13 CFR 121.201, Sector 22, Utilities.

    • Hydroelectric power generation, at 500 employees • Fossil fuel electric power generation, at 750 employees • Nuclear electric power generation, at 750 employees • Other electric power generation (e.g., solar, wind, geothermal, biomass, and other), at 250 employees • Electric bulk power transmission and control,163 at 500 employees

    163 This category covers transmission planners and planning coordinators.

    131. Based on these categories, the Commission will use a conservative threshold of 750 employees for all entities.164 Applying this threshold, the Commission estimates that there are 440 small entities that function as planning coordinators, transmission planners, transmission owners, and/or generator owners. However, the Commission estimates that only a subset of such small entities will be subject to the approved Reliability Standard given the additional applicability criterion in the approved Reliability Standard (i.e., to be subject to the requirements of the approved Reliability Standard, the applicable entity must own or must have a planning area that contains a large power transformer with a high side, wye-grounded winding with terminal voltage greater than 200 kV).

    164 By using the highest number threshold for all types of entities, our estimate conservatively treats more entities as “small entities.”

    132. Reliability Standard TPL-007-1 enhances reliability by establishing requirements that require applicable entities to perform GMD Vulnerability Assessments and to mitigate identified vulnerabilities. The Commission estimates that each of the small entities to whom the approved Reliability Standard applies will incur one-time compliance costs of $5,193.34 and annual ongoing costs of $5,233.50.

    133. The Commission does not consider the estimated cost per small entity to impose a significant economic impact on a substantial number of small entities. Accordingly, the Commission certifies that the approved Reliability Standard will not have a significant economic impact on a substantial number of small entities.

    VI. Document Availability

    134. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page (http://www.ferc.gov) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426.

    135. From FERC's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

    136. User assistance is available for eLibrary and the FERC's website during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. E-mail the Public Reference Room at [email protected]

    VII. Effective Date and Congressional Notification

    137. These regulations are effective November 29, 2016. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this rule is not a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996.

    By the Commission.

    Issued: September 22, 2016. Nathaniel J. Davis, Sr., Deputy Secretary.
    Appendix Commenters Initial Comments Abbreviation Commenter AEP American Electric Power Service Corporation. APS Arizona Public Service Company. ATC American Transmission Company. Baker Greta Baker. Bardin David J. Bardin. BPA Bonneville Power Administration. Briggs Kevin Briggs. CEA Canadian Electricity Association. CSP Center for Security Policy. EIS Electric Infrastructure Security Council. Emprimus Emprimus LLC. Exelon Exelon Corporation. Gaunt Charles T. Gaunt. Holdeman Eric Holdeman. Hydro One Hydro One Networks Inc. ITC International Transmission Company. Lloyd's Lloyd's America, Inc. JINSA Jewish Institute for National Security Affairs. Joint ISOs/RTOs ISO New England Inc., Midcontinent Independent Transmission System Operator, Inc., Independent Electricity System Operator, New York Independent System Operator, Inc., and PJM Interconnection, L.L.C. Kappenman John G. Kappenman and Curtis Birnbach. Morris Eric S. Morris. NERC North American Electric Reliability Corporation. Resilient Societies Foundation for Resilient Societies. Roodman David Roodman. Trade Associations American Public Power Association, Edison Electric Institute, Electricity Consumers Resource Council, Electric Power Supply Association, Large Public Power Council, National Rural Electric Cooperative Association. Tri-State Tri-State Generation and Transmission Association, Inc. USGS United States Geological Survey. Supplemental Comments AEP American Electric Power Service Corporation. Bardin David J. Bardin. CSP Center for Security Policy. Gaunt Charles T. Gaunt. IEEE IEEE Power and Energy Society Transformers Committee. Kappenman John G. Kappenman and Curtis Birnbach. NERC North American Electric Reliability Corporation. Resilient Societies Foundation for Resilient Societies. Roodman David Roodman. Trade Associations American Public Power Association, Edison Electric Institute, Electricity Consumers Resource Council, Electric Power Supply Association, Large Public Power Council, National Rural Electric Cooperative Association. USGS United States Geological Survey.
    [FR Doc. 2016-23441 Filed 9-29-16; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF HOMELAND SECURITY U.S. Customs and Border Protection DEPARTMENT OF THE TREASURY 19 CFR Part 12 [Docket No. USCBP-2016-0061; CBP Dec. 16-15] RIN 1515-AE12 Notice of Arrival for Importations of Pesticides and Pesticidal Devices AGENCY:

    U.S. Customs and Border Protection, Department of Homeland Security; Department of the Treasury.

    ACTION:

    Interim regulations; solicitation of comments.

    SUMMARY:

    This document amends the U.S. Customs and Border Protection (CBP) regulations pertaining to the importation of pesticides and pesticidal devices into the United States subject to the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). Specifically, CBP is amending the regulations to permit the option of filing an electronic alternative to the U.S. Environmental Protection Agency's (EPA) “Notice of Arrival of Pesticides and Devices” (NOA) paper form, with entry documentation, via any CBP-authorized electronic data interchange system. This change will support modernization initiatives, including implementation of the International Trade Data System (ITDS). This document also makes non-substantive conforming and editorial changes to the CBP regulations.

    DATES:

    This interim final rule is effective September 30, 2016. Comments must be submitted on or before October 31, 2016.

    ADDRESSES:

    You may submit comments, identified by docket number USCBP-2016-0061, by one of the following methods:

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

    Mail: Trade and Commercial Regulations Branch, Regulations and Rulings, Office of Trade, U.S. Customs and Border Protection, 90 K Street NE., 10th Floor, Washington, DC 20229-1177.

    Instructions: All submissions received must include the agency name and docket title for this rulemaking, and must reference docket number USCBP-2016-0061. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided. For detailed instructions on submitting comments and additional information on the rulemaking process, see the “Public Participation” heading of the SUPPLEMENTARY INFORMATION section of the document.

    Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov. Submitted comments may also be inspected during business days between the hours of 9:00 a.m. and 4:30 p.m. at the Trade and Commercial Regulations Branch, Regulations and Rulings, Office of Trade, U.S. Customs and Border Protection, 90 K Street NE., 10th Floor, Washington, DC. Arrangements to inspect submitted comments should be made in advance by calling Mr. Joseph Clark at (202) 325-0118.

    FOR FURTHER INFORMATION CONTACT:

    For questions related to the filing of EPA forms with CBP, contact William R. Scopa, Branch Chief, Partner Government Branch, Inter-Agency Collaboration Division, Office of Trade, U.S. Customs and Border Protection, at william.r.scopa.cbp.dhs.gov. For EPA-related questions, contact Ryne Yarger, Environmental Protection Specialist, Field and External Affairs Division, Office of Pesticide Programs, U.S. Environmental Protection Agency, at [email protected], telephone (703) 605-1193.

    SUPPLEMENTARY INFORMATION:

    Public Participation

    Interested persons are invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of the interim rule. See ADDRESSES above for information on how to submit comments. U.S. Customs and Border Protection (CBP) also invites comments that relate to the economic, environmental, or federalism effects that might result from this interim rule. Comments that will provide the most assistance to CBP will reference a specific portion of the interim rule, explain the reason for any recommended change, and include data, information, or authority that support such recommended change.

    Background I. The Federal Insecticide, Fungicide and Rodenticide Act

    The Federal Insecticide, Fungicide and Rodenticide Act (FIFRA), as amended (7 U.S.C. 136 et seq.), provides for federal regulation of pesticide distribution, sale, and use in the United States. Section 3 of the FIFRA, 7 U.S.C. 136a, requires that, with limited exceptions, all pesticides distributed or sold in the United States must be registered (licensed) by the U.S. Environmental Protection Agency (EPA). Section 17(c)(1) of the FIFRA, 7 U.S.C. 136o(c)(1), provides for EPA review of pesticides and devices being imported into the United States and authorizes U.S. Customs and Border Protection (CBP), at the request of EPA, to delay or refuse admission of imports that appear, from examination, to be adulterated, or misbranded, or otherwise violate the provisions of the FIFRA or are injurious to human health or the environment. Section 17(e) of the FIFRA, 7 U.S.C. 136o(e), provides that CBP, in consultation with EPA, will prescribe regulations for the enforcement of section 17(c).

    Under the FIFRA, EPA has authority to regulate the distribution or sale of registered and unregistered pesticides and pesticidal devices into the United States. In order to facilitate compliance with the FIFRA, the filing of EPA Form 3540-1 (“Notice of Arrival of Pesticides and Devices,” hereinafter referred to in this document as “NOA”) is required to notify EPA of the arrival of imported pesticides and devices and serves to assist EPA and CBP in fulfilling their statutory obligation under the FIFRA to regulate the importation, distribution, or sale of pesticides and devices in the United States. The NOA can be found in fillable .pdf format on EPA's “Compliance” Web site at https://www.epa.gov/compliance/epa-form-3540-1-notice-arrival-pesticides-and-devices.

    II. Current Pesticide and Device Importation Procedures

    The statutory provisions set forth in section 17(c) of the FIFRA, 7 U.S.C. 136o(c), are implemented in the CBP regulations at §§ 12.110 through 12.117 of title 19 of the Code of Federal Regulations (19 CFR 12.110-12.117) and prescribe the administration of CBP's pesticide and device import program.

    Currently, when a pesticide or device is to be imported into the United States, the importer of record or its agent must submit, prior to arrival, a NOA to the EPA regional office with responsibility for the port of entry where the merchandise will be entered. EPA reviews and evaluates the information presented on the NOA and determines the disposition to be made of the shipment of the pesticides or devices upon their arrival in the United States. EPA may request additional information to make its determination on whether the pesticides or devices satisfy the requirements of the FIFRA. Upon review of the NOA, EPA will inform CBP of the action to be taken with respect to the shipment. The possible actions include release, detention, or refusal of entry of the shipment. The determination is indicated on the completed NOA form, which is signed by an EPA official and returned to the importer or its agent. The importer or the importer's agent must submit the completed NOA form to CBP along with the documentation required for the entry of merchandise. CBP will follow EPA's disposition instructions in the NOA and notify EPA when discrepancies exist between the NOA and the entry documents.

    III. Explanation of Interim Amendments to CBP Regulations

    CBP, in consultation with EPA, is amending the CBP regulations to permit the option of filing an electronic alternative to the NOA with the entry documentation, via any CBP-authorized electronic data interchange system. The NOA may still be filed in a paper format with the EPA prior to arrival of the shipment, and the completed NOA must be filed with CBP at the time of entry.

    These changes liberalize filing procedures and implement modernization initiatives including the International Trade Data System (ITDS), as established by section 405 of the Security and Accountability for Every (SAFE) Port Act of 2006, Public Law 109-347, 120 Stat. 1884, by utilizing a single-window system for the collection and distribution of standard electronic import and export data required by participating Federal agencies. These amendments will allow electronic collection, processing, sharing, and review of requisite trade data and documents during the cargo import process.

    A discussion of the amendments to 19 CFR 12.110-12.117, other than non-substantive editorial changes, is set forth below.

    Section 12.111

    Existing § 12.111 (19 CFR 12.111) provides that all imported pesticides are required to be registered under the provisions of section 3 of the FIFRA, and pursuant to 40 CFR 162.10, before being permitted entry into the United States. Devices, although not required to be registered, must not bear any statement, design, or graphic representation that is false or misleading in any particular.

    CBP is amending this section to update an EPA regulatory citation and to conform to EPA regulations that allow certain pesticides to be imported without registration.

    Section 12.112

    Existing § 12.112(a) (19 CFR 12.112(a)) provides that prior to arrival of pesticides or devices into the United States, the importer must submit a NOA to the Administrator of the EPA. EPA will complete the NOA, indicating the disposition to be made of the shipment of pesticides or devices upon its arrival in the United States, and return it to the importer or its agent. Existing § 12.112(b) exempts importers of chemicals imported for use other than as pesticides from the requirement to submit a NOA.

    This rule liberalizes the procedures set forth in 19 CFR 12.112(a) by permitting the option of filing an electronic alternative to the NOA, with the entry documentation, via any CBP-authorized electronic data interchange system. The NOA may still be filed in a paper format, however it must be submitted to the EPA prior to arrival of the shipment.

    Section 12.113

    Existing § 12.113 (19 CFR 12.113) prescribes the presentation of the NOA to CBP, and the ramifications of failure to do so. Specifically, paragraph (a) requires that upon arrival of a shipment of pesticides or devices into the United States, the importer or its agent must present the completed NOA to the CBP port director and the port director will notify EPA of any discrepancies between the entry documents for the shipment and the information contained in the NOA. Paragraph (b) provides that where a completed NOA is not presented to CBP upon arrival, the shipment will be detained by CBP at the importer's risk and expense until the completed NOA is presented or until other disposition is ordered by EPA. The detention may not exceed 30 days, unless extended by CBP for good cause for a period not to exceed an additional 30 days. The importer or his agent may also request CBP for an extension of the initial 30-day detention period. Paragraph (c) provides that a shipment that remains detained or undisposed of due to failure to present a completed NOA or non-receipt of the EPA shipment disposition order as to its disposition will be treated as a prohibited importation. CBP will cause the destruction of any such shipment not exported by the consignee within 90 days after the expiration of the detention period.

    CBP is amending § 12.113 to clarify that CBP must be in receipt of the completed NOA at the time of entry, and not upon arrival, and that an electronic alternative to the NOA may be filed via any CBP-authorized electronic data interchange system with the filing of the entry documentation.

    Section 12.115

    Section 12.115 (19 CFR 12.115) prescribes the terms applicable to when a shipment of detained pesticides or devices may be released to the consignee under bond pending an examination by EPA as to whether the goods comply with the requirements of the FIFRA.

    CBP is amending this section to conform to 19 CFR part 133 which permits the electronic filing of bonds.

    Section 12.116

    Section 12.116 (19 CFR 12.116) prescribes the manner by which CBP will deliver samples of the imported pesticides or devices, and any related information, to EPA.

    CBP is amending this provision by removing the reference to “in writing” to reflect that CBP may notify the consignee electronically.

    Inapplicability of Notice and Delayed Effective Date

    The Administrative Procedure Act (APA) requirements in 5 U.S.C. 553 govern agency rulemaking procedures. Section 553(b) of the APA generally requires notice and public comment before issuance of a final rule. In addition, section 553(d) of the APA requires that a final rule have a 30-day delayed effective date. The APA, however, provides exceptions from the prior notice and public comment requirement and the delayed effective date requirements, when an agency for good cause finds that such procedures are impracticable, unnecessary, or contrary to the public interest.

    Treasury and CBP find that prior notice and comment procedures are unnecessary and that good cause exists to issue these regulations effective upon publication. Prior procedures are unnecessary because the rule does not substantively alter the underlying rights or interests of importers or filers, but only expands the options available to filers in presenting required information to the agency.

    Executive Orders 13563 and 12866

    Executive Orders (E.O.) 13563 and 12866 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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This interim rule is not a “significant regulatory action,” under section 3(f) of E.O. 12866. Accordingly, OMB has not reviewed this regulation.

    Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996, requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of a proposed rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions) when the agency is required to publish a general notice of proposed rulemaking for a rule. Since a general notice of proposed rulemaking is not necessary for this rule, CBP is not required to prepare a regulatory flexibility analysis for this rule.

    Paperwork Reduction Act (PRA)

    The information collection activities associated with the existing requirements related to the submission of a paper NOA under 19 CFR 12.110-12.117, are currently approved by OMB under OMB control number 2070-0020 (EPA ICR No. 0152.10). This rule adds an electronic filing option to the existing paper filing option, in which the information collection activities for the electronic filing of a NOA have been approved under OMB control number 2070-0020 (EPA ICR No. 0152.11). There is no change in burden hours as a result of this rule.

    Signing Authority

    This document is being issued in accordance with § 0.1(a)(1) of the CBP regulations (19 CFR 0.1(a)(1)) pertaining to the authority of the Secretary of the Treasury (or his or her delegate) to approve regulations related to certain CBP revenue functions.

    List of Subjects in 19 CFR Part 12

    Customs duties and inspection, Entry of merchandise, Imports, Pesticides and devices, Reporting and recordkeeping requirements.

    Amendments to Part 12 of the CBP Regulations

    For the reasons set forth in the preamble, 19 CFR part 12 is amended as set forth below.

    PART 12—SPECIAL CLASSES OF MERCHANDISE 1. The general authority citation for part 12, and the specific authority citations for sections 12.110 through 12.117, continue to read as follows: Authority:

    5 U.S.C. 301; 19 U.S.C. 66, 1202 (General Note 3(i), Harmonized Tariff Schedule of the United States (HTSUS)), 1624.

    Sections 12.110 through 12.117 also issued under 19 U.S.C. 1484 and 7 U.S.C. 136 et seq.

    § 12.110 [Amended]
    2. Section 12.110 is amended: a. In the first sentence, by removing the word “shall”; and b. In the second sentence, by removing the words “shall mean” and adding in their place the word “means”.
    § 12.111 [Amended]
    3. In § 12.111, the first sentence is amended by removing the word “All” and adding in its place the word “Certain”, and by removing the number “162.10” and adding in its place the language “part 152”. 4. Section 12.112 is amended by revising paragraph (a) to read as follows:
    § 12.112 Notice of Arrival of pesticides and devices filed with the Administrator.

    (a) General. An importer or the importer's agent desiring to import pesticides or devices into the United States must submit to the Administrator, prior to the arrival of the shipment in the United States, a Notice of Arrival of Pesticides and Devices (Notice of Arrival) on U.S. Environmental Protection Agency (EPA) Form 3540-1. The Administrator will complete the Notice of Arrival and provide notification to the importer or the importer's agent indicating the disposition to be made of a pesticide or device upon its entry into the United States. In the alternative, the importer or the importer's agent may file an electronic alternative to the Notice of Arrival, with the filing of the entry documentation, via any CBP-authorized electronic data interchange system.

    5. Section 12.113 is revised to read as follows:
    § 12.113 Arrival and entry of shipment of pesticides and devices.

    (a) Notice of Arrival form filed with CBP. Upon entry of a shipment of pesticides or devices into the United States, and concurrent with the filing of the entry documentation, CBP must be in receipt of a completed Notice of Arrival of Pesticides and Devices (Notice of Arrival) on U.S. Environmental Protection Agency (EPA) Form 3540-1 or its electronic alternative submitted via any CBP-authorized electronic data interchange system. A completed Notice of Arrival must have been signed by the Administrator and indicate any action to be taken by CBP with respect to the shipment. CBP will compare entry information for the shipment of pesticides or devices with the information in the Notice of Arrival and notify the Administrator of any discrepancies.

    (b) EPA Notice of Arrival declaration form not presented. When a shipment of pesticides or devices arrives and entry is attempted in the United States without a completed Notice of Arrival having been filed with CBP pursuant to paragraph (a) of this section, the shipment will be detained by CBP at the importer's risk and expense until the completed Notice of Arrival is presented to CBP or until other disposition is ordered by the Administrator. Such detention is not to exceed a period of 30-calendar days, or such additional extended 30-calendar day detention period as CBP may for good cause authorize. An importer or its agent may request an extension of the initial 30-calendar day detention period by filing a request with the director of the CBP port of entry.

    (c) Disposition of pesticides or devices remaining under detention. A shipment of pesticides or devices that remains detained or undisposed of due to the failure to timely submit to CBP a completed Notice of Arrival will be treated as a prohibited importation. CBP will cause the destruction of any such shipment not exported by the consignee within 90-calendar days after the expiration of the detention period specified or authorized by paragraph (b) of this section.

    6. Section 12.114 is revised to read as follows:
    § 12.114 Release or refusal of delivery.

    If the EPA directs the port director to release the shipment of pesticides or devices, the shipment will be released to the consignee. If the EPA directs the port director to refuse delivery of the shipment, the shipment will be refused delivery and treated as a prohibited importation. The port director will cause the destruction of any shipment refused delivery and not exported by the consignee within 90-calendar days after notice of such refusal of delivery.

    7. Section 12.115 is revised to read as follows:
    § 12.115 Release under bond of shipment detained for examination.

    If the EPA so directs, a shipment of pesticides or devices will be detained at the importer's risk and expense by the port director pending an examination by the Administrator to determine whether the shipment complies with the requirements of the Act. However, a shipment detained for examination may be released to the consignee prior to a determination by the Administrator provided a bond is furnished on CBP Form 301, or its electronic equivalent, containing the bond conditions set forth in § 113.62 of this chapter, for the return of the merchandise to CBP custody, and upon entry of the merchandise and the satisfaction of all other applicable laws. The bond will be in an amount deemed appropriate by CBP. When a shipment of pesticides or devices is released to the consignee under bond, the pesticides or devices must not be used or otherwise disposed of until the determination on compliance with the requirements of the Act is made by the Administrator.

    § 12.116 [Amended]
    8. Section § 12.116 is amended: in the first and last sentences, by removing the word “shall” each place that it appears and adding in each place the word “will”; and, in the last sentence, by removing the phrase “, in writing,”.
    § 12.117 [Amended]
    9. Section 12.117 is amended by removing the word “shall” each place that it appears and adding in each place the word “will”. R. Gil Kerlikowske, Commissioner, U.S. Customs and Border Protection. Approved: September 26, 2016. Timothy E. Skud, Deputy Assistant Secretary of the Treasury.
    [FR Doc. 2016-23578 Filed 9-29-16; 8:45 am] BILLING CODE 9111-14-P
    INTERNATIONAL TRADE COMMISSION 19 CFR Part 220 Rules Relating to the Submission and Consideration of Petitions for Duty Suspensions and Reductions AGENCY:

    United States International Trade Commission.

    ACTION:

    Interim rule with request for comments.

    SUMMARY:

    The United States International Trade Commission (Commission) is adopting interim rules that will amend the Commission's Rules of Practice and Procedure and establish a new part governing the submission and consideration of petitions for duty suspensions and reductions under the American Manufacturing Competitiveness Act of 2016.

    DATES:

    Effective date: September 30, 2016.

    Deadline for filing written comments: November 29, 2016.

    ADDRESSES:

    You may submit comments, identified by docket number MISC-046, rulemaking regarding petitions for duty suspensions and reductions, by any of the following methods:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Agency Web site: https://edis.usitc.gov. Follow the instructions for submitting comments on the Web site. Mail: For paper submission. U.S. International Trade Commission, 500 E Street SW., Room 112A, Washington, DC 20436. Hand Delivery/Courier: U.S. International Trade Commission, 500 E Street SW., Room 112A, Washington, DC 20436. From the hours of 8:45 a.m. to 5:15 p.m.

    Instructions: All submissions received must include the agency name and docket number (MISC-046, Rulemaking Regarding Petitions for Duty Suspensions/Reductions), along with a cover letter stating the nature of the commenter's interest in the proposed rulemaking. All comments received will be posted without change to https://edis.usitc.gov including any personal information provided. For paper copies, a signed original and 8 copies of each set of comments should be submitted to Lisa R. Barton, Secretary, U.S. International Trade Commission, 500 E Street SW., Room 112A, Washington, DC 20436.

    For access to the docket to read background documents or comments received, go to https://edis.usitc.gov and/or the U.S. International Trade Commission, 500 E Street SW., Room 112A, Washington, DC 20436.

    FOR FURTHER INFORMATION CONTACT:

    Lisa R. Barton, Secretary, telephone (202) 205-2000 or William Gearhart, Esquire, Office of the General Counsel, United States International Trade Commission, telephone (202) 205-3091. Hearing-impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal at 202-205-1810. General information concerning the Commission may also be obtained by accessing its Web site at https://www.usitc.gov.

    SUPPLEMENTARY INFORMATION:

    The preamble below is designed to assist readers in understanding these amendments to the Commission's Rules of Practice and Procedure (the Rules). This preamble provides background information, a regulatory analysis of the amendments, a section-by-section explanation of the amendments, and a description of the amendments to the Rules. The Commission encourages members of the public to comment on whether the language of the amendments is sufficiently clear for users to understand, and to submit any other comments they wish to make on the amendments.

    These amendments are being promulgated in accordance with the Administrative Procedure Act (5 U.S.C. 553) (APA), and will be codified in 19 CFR part 220.

    Background

    Section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) authorizes the Commission to adopt such reasonable procedures, rules and regulations as it deems necessary to carry out its functions and duties. In addition, section 3(b)(5) of the American Manufacturing Competitiveness Act of 2016, Public Law 114-159, 130 Stat. 396 (19 U.S.C. 1332 note) (the Act) directs the Commission to prescribe and publish in the Federal Register and on a publicly available internet Web site of the Commission procedures to be complied with by members of the public submitting petitions for duty suspensions and reductions under section 3(b)(1)(A) of that Act.

    The Commission is promulgating rules governing the submission and consideration of petitions for duty suspensions and reductions under the Act. Section 3 of the Act establishes a process for the submission and consideration of petitions for duty suspensions and reductions. More specifically, it directs the Commission to publish a notice by October 15, 2016, that requests members of the public to submit petitions to the Commission for duty suspensions and reductions, provided that they can demonstrate that they are likely beneficiaries of such duty suspensions or reductions. The Act also provides that the petitioners must submit disclosure forms with respect to such duty suspensions and reductions. The petitions and disclosure forms must be submitted during the 60-day period beginning on the date of publication of the Commission's notice. Section 3 of the Act also lists the types of information that must be included in a petition.

    Section 3 of the Act requires that the Commission publish on its Web site all of the petitions that contain the required information and the related disclosure forms no later than 30 days after the close of the 60-day filing period. It also provides that members of the public will have 45 days from the date of the notice's publication to submit comments to the Commission regarding the petitions and disclosure forms. The Commission must make those comments available to the public on the Commission's Web site.

    These amendments establish new Commission rules governing the submission of petitions and the issuance of the Commission's reports to the Congress under the Act. The new rules identify the types of entities that may file a petition, describe the information that must be included in a petition, provide procedures for public comment, and describe the schedule for filing petitions and public comments. The new rules also describe the content of the preliminary and final reports that the Commission must submit to the Congress, and the time for submitting those reports, and otherwise establish procedures relating to the Commission's review and processing of the petitions under the Act.

    Procedure for Adopting the Interim Amendments

    The Commission ordinarily promulgates amendments to the Code of Federal Regulations in accordance with the notice-and-comment rulemaking procedure in section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553). That procedure entails publication of notice of proposed rulemaking in the Federal Register that solicits public comment on the proposed amendments, consideration by the Commission of public comments on the content of the amendments, and publication of the final amendments at least 30 days prior to their effective date.

    In this instance, however, the Commission is amending its rules in 19 CFR part 220 on an interim basis, effective upon publication of this notice in the Federal Register. The Commission's authority to adopt interim amendments without following all steps listed in section 553 of the APA is derived from section 335 of the Tariff Act of 1930 (19 U.S.C. 1335), section 3(b)(5) of the American Manufacturing Competitiveness Act of 2016 (19 U.S.C. 1332 note), and section 553 of the APA.

    Section 553(b) of the APA allows an agency to dispense with publication of a notice of proposed rulemaking when the following circumstances exist: (1) The rules in question are interpretive rules, general statements of policy, or rules of agency organization, procedure or practice; or (2) the agency for good cause finds that notice and public comment on the rules are impracticable, unnecessary, or contrary to the public interest, and the agency incorporates that finding and the reasons therefor into the rules adopted by the agency. Section 553(d)(3) of the APA allows an agency to dispense with the publication of notice of final rules at least thirty days prior to their effective date if the agency finds that good cause exists for not meeting the advance publication requirement and the agency publishes that finding along with the rules. Additionally, section 3(b)(5) of the American Manufacturing Competitiveness Act of 2016 requires that the Commission prescribe and publish procedures for submitting petitions for duty suspensions and reductions under that Act, and section 335 of the Tariff Act authorizes the Commission to adopt such reasonable procedures, rules, and regulations as it deems necessary to carry out its functions and duties.

    In this instance, the Commission has determined that the requisite circumstances exist for dispensing with the notice, comment, and advance publication procedure that ordinarily precedes the adoption of Commission rules. For purposes of invoking the section 553(b)(3)(A) exemption from publishing a notice of proposed rulemaking that solicits public comment, the Commission finds that the interim amendments to part 220 are “agency rules of procedure and practice.” Moreover, the Commission finds under 553(b)(3)(B) that good cause exists to waive prior notice and opportunity for public comment. In particular, the American Manufacturing Competitiveness Act of 2016 took effect on May 20, 2016, and it requires that the Commission have a process in place to accept petitions not later than October 15, 2016, which makes the establishment of rules a matter of urgency. Hence, it would be impracticable for the Commission to comply with the usual notice of proposed rulemaking and public comment procedure, and therefore the Commission has determined that interim rules are needed under these circumstances.

    For the purpose of invoking the section 553(d)(3) exemption from publishing advance notice of the interim amendments to part 220 at least thirty days prior to their effective date, the Commission finds the fact that the Act was signed by the President on May 20, 2016, but requires that the Commission have a complete process in place no later than October 15, 2016, makes such advance publication impracticable and constitutes good cause for not complying with that requirement.

    The Commission recognizes that interim rule amendments should not respond to anything more than the exigencies created by the new legislation. Each interim amendment to part 220 concerns a new rule covering a matter addressed in the new legislation but not covered by a preexisting rule.

    After taking into account all comments received and the experience acquired under the interim rules, the Commission will replace them with final rules promulgated in accordance with the notice, comment, and advance publication procedure prescribed in section 553 of the APA.

    Regulatory Analysis of Proposed Amendments to the Commission's Rules

    The Commission has determined that these interim rules do not meet the criteria described in section 3(f) of Executive Order 12866 (58 FR 51735, October 4, 1993) and thus do not constitute a “significant regulatory action” for purposes of the Executive Order.

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is inapplicable to this rulemaking because it is not one for which a notice of proposed rulemaking is required under 5 U.S.C. 553(b) or any other statute.

    These interim rules do not contain federalism implications warranting the preparation of a federalism summary impact statement pursuant to Executive Order 13132 (64 FR 43255, August 4, 1999).

    No actions are necessary under title II of the Unfunded Mandates Reform Act of 1995, Public Law 104-4 (2 U.S.C. 1531-1538) because the interim rules will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year (adjusted annually for inflation), and will not significantly or uniquely affect small governments.

    These interim rules are not “major rules” as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801et seq.). Moreover, they are exempt from the reporting requirements of that Act because they contain rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties.

    The Commission has submitted an information collection request for its secure web portal for the Miscellaneous Tariff Bills Petition System to the Office of Management and Budget for Paperwork Reduction Act clearance. See 81 FR 58531 (Aug. 25, 2016). The Commission intends to process the information it collects consistent with these interim rules.

    Section-by-Section Explanation of the Proposed Amendments PART 220—PROCESS FOR CONSIDERATION OF PETITIONS FOR DUTY SUSPENSIONS AND REDUCTIONS

    Section 220.1 of part 220 states this part of the rules applies to proceedings of the Commission under the American Manufacturing Competitiveness Act of 2016.

    Section 220.2 defines key terms and acronyms used in part 220. The definitions are drawn largely from definitions in the Act itself. The definitions of the terms “like” and “directly competitive” are taken from definitions in the legislative history of the Trade Act of 1974 and have been traditionally applied in connection with several U.S. trade laws that use those terms. The definition of “imminent production” states that the term normally means production that is planned to begin within 3 years of the date the petition is filed, which is intended to conform to the Commission's practice with respect to miscellaneous tariff bills prior to the Act. The applicability of this definition of “imminent production” is limited to the Act.

    Section 220.3 identifies the types of entities that may file a petition and specifies the format that must be followed in submitting a petition. Consistent with the statute, it states that a petition under this part may be filed by members of the public who can demonstrate that they are likely beneficiaries of duty suspensions or reductions. It also states that a member of the public for these purposes would generally be a firm, importer of record, a manufacturer that uses the imported article, or a U.S. Federal, state, or local government entity. Section 220.3 states that any petition must be filed via the Commission's secure web portal designated for this purpose, and it makes clear that the Commission will not accept petitions submitted in paper or in any other form.

    Section 220.4 states that petitions for duty suspensions or reductions must be filed not later than 60 days after the Commission publishes a notice of opportunity to file in the Federal Register, and states that the Commission will publish such notice no later than October 15, 2016, for the first round of petitions. Section 220.4 states that a second round of petitions may be filed in October 2019, after publication of a similar notice.

    Section 220.5 lists the types of information that must be set forth in a petition, including the name of the petitioner and contact information, a statement regarding whether the petitioner is seeking a duty suspension or a duty reduction, a description of the article concerned, a description of the industry, a certification that the petitioner is a likely beneficiary, certain U.S. Customs and Border Protection (CBP) documentation, the names of known importers, the names of likely beneficiaries, and a description of any domestic production of the article. It also requires that the petitioner certify that it has not filed identical or overlapping petitions with the Commission.

    Section 220.6 further describes the information that should be included in the description of the article for which a duty suspension or reduction is being sought. It also identifies types of article descriptions that the Commission will not likely recommend for inclusion in a miscellaneous tariff bill, such as those that contain “actual use” or “chief use” criteria or trade-marked and other protected names, and those that might alter tariff treatment or classification of a product.

    Section 220.7 states that a petition will not be considered to be “properly filed” unless it contains all the information required by §§ 220.3 through 220.5 of the rules. It also states that, when a petitioner files petitions that are identical or overlapping in article coverage and does not withdraw the earlier petition(s), the Commission will consider the earliest filed pending petition to be the petition of record.

    Section 220.8 states that, in the case of petitions for identical or overlapping articles received from multiple petitioners, the Commission may consolidate those petitions and publish a single recommendation.

    Section 220.9 states that a petitioner may withdraw a petition at any time prior to the time the Commission transmits its final report to the House Committee on Ways and Means and the Senate Committee on Finance (Committees). It also states that a petitioner who withdraws a petition may file a new petition, but only during the 60-day window allowed for filing petitions. The rule further states that a petitioner may not amend a petition, but instead must withdraw the petition and file a new one within the 60-day filing period.

    Section 220.10 states that the Commission will publish on its Web site, no later than 30 days after expiration of the 60-day period for filing petitions, the petitions for duty suspensions and reductions that are timely filed and that contain the required information. The rule also states that at that time the Commission will publish a notice in the Federal Register inviting members of the public to submit comments on the petitions received. It states that those comments must be filed through the Commission's secure web portal no later than 45 days after publication of the notice.

    Section 220.11 states that the Commission will submit its preliminary report to the Committees no later than 150 days after it publishes the petitions submitted. The rule describes the types of information that will be included in the preliminary report, including the Commission's determination of whether or not domestic production of the article exists, any technical changes to the article description that are needed to make the description administrable, an estimate of the amount of revenue loss, and a determination of whether or not the duty suspension is available to any person who imports the article. The rule states that the Commission will also include in the preliminary report a list of the petitions that meet certain statutory criteria.

    Section 220.12 states that the Commission will submit its final report to the Committees no later than 60 days after it submits its preliminary report. It states that the final report will include the information required to be included in the preliminary report as updated after taking into consideration certain information from the Committees, and that the report also will include determinations regarding whether the duty suspension or reduction can likely be administered by CBP, whether the estimated loss in revenue from the duty suspension or reduction does not exceed $500,000, and whether the duty suspension or reduction is available to any person importing the articles.

    Section 220.13 states that the Commission will not release information that the Commission considers to be confidential business information within the meaning of 19 CFR 201.6(a) unless the party submitting the information had notice at the time of submission that such information would be released, or such party subsequently consents to release. The rule notifies parties of two possible instances in which confidential business information might be released: (1) The Commission may base its revenue loss estimates on the estimated values of imports submitted by petitioners in their petitions, and (2) the Commission may disclose some or all of the confidential business information provided in petitions and public comments to the U.S. Department of Commerce, the U.S. Department of Agriculture, and CBP for use in preparing the report that Commerce provides to the Commission and the Committees.

    Section 220.14 states that Commission rules that apply to the initiation and conduct of investigations, with the exception of certain rules that apply to methods employed in obtaining information, the computation of time, and to attorneys and agents, will not apply to Commission proceeding under part 220.

    List of Subjects in 19 CFR Part 220

    Administrative practice and procedure, Miscellaneous tariff bills.

    For the reasons stated in the preamble, the United States International Trade Commission amends 19 CFR chapter II by adding part 220 to subchapter D to read as follows: PART 220—PROCESS FOR CONSIDERATION OF PETITIONS FOR DUTY SUSPENSIONS AND REDUCTIONS Sec. 220.1 Applicability of part. 220.2 Definitions applicable to this part. 220.3 Who may file a petition, format for filing. 220.4 Time for filing. 220.5 Contents of petition. 220.6 Article description. 220.7 Properly filed petition. 220.8 Consolidation of petitions. 220.9 Withdrawal of petitions, amendments to petitions. 220.10 Commission review of petitions and disclosure forms. 220.11 Commission preliminary report. 220.12 Commission final report. 220.13 Confidential business information. 220.14 Application of other Commission rules. Authority:

    19 U.S.C. 1335; Public Law 114-159, 130 Stat. 396 (19 U.S.C. 1332 note).

    § 220.1 Applicability of part.

    This part applies to proceedings of the Commission under the American Manufacturing Competitiveness Act of 2016, Public Law 114-159, 130 Stat. 396 (19 U.S.C. 1332 note).

    § 220.2 Definitions applicable to this part.

    For the purposes of this part, the following terms have the meanings hereby assigned to them:

    (a) Act means the American Manufacturing Competitiveness Act of 2016.

    (b) HTS means Harmonized Tariff Schedule of the United States.

    (c) Committees means the House Committee on Ways and Means and Senate Committee on Finance.

    (d) Commission disclosure form means the information submitted to the Commission by a petitioner as part of a petition for a duty suspension or reduction that contains the following:

    (1) The contact information for any known importers of the article to which the proposed duty suspension or reduction would apply.

    (2) A certification by the petitioner that the proposed duty suspension or reduction is available to any person importing the article to which the proposed duty suspension or reduction would apply.

    (3) A certification that the petitioner is a likely beneficiary of the proposed duty suspension or reduction.

    (e) Duty suspension or reduction refers to an amendment to the HTS for a period not to exceed 3 years that—

    (1) Extends an existing temporary duty suspension or reduction on an article under chapter 99 of the HTS; or

    (2) Provides for a new temporary duty suspension or reduction on an article under that chapter.

    (f) Likely beneficiary means an individual or entity likely to utilize, or benefit directly from the utilization of, an article that is the subject of a petition for a duty suspension or reduction.

    (g) Domestic producer means a person that demonstrates production, or imminent production, in the United States of an article that is identical to, or like or directly competitive with, an article to which a petition for a duty suspension or reduction would apply.

    (h) Domestic production means the production of an article that is identical to, or like or directly competitive with, an article to which a petition for a duty suspension or reduction would apply, for which a domestic producer has demonstrated production, or imminent production, in the United States.

    (1) “Identical” article means a domestic article that has the same inherent or intrinsic characteristics and is classified in the same HTS rate line as the article that is the subject of a petition for duty suspension or reduction;

    (2) “Like” article means a domestic article that is substantially identical in inherent or intrinsic characteristics (i.e., materials from which made, appearance, quality, texture, etc.) as the article that is the subject of a petition for duty suspension or reduction; and

    (3) “Directly competitive” article means a domestic article which, although not substantially identical in its inherent or intrinsic characteristics, is substantially equivalent for commercial purposes, that is, adapted to the same uses and essentially interchangeable therefor as the article that is the subject of a petition for duty suspension or reduction.

    (i) Imminent production normally means production planned to begin within 3 years of the date on which the petition is filed.

    § 220.3 Who may file a petition, format for filing.

    (a) Who may file. A petition under this part may be filed by members of the public who can demonstrate that they are likely beneficiaries of duty suspensions or reductions. A member of the public for these purposes would generally be a firm, importer of record, a manufacturer that uses the imported article, or a government entity at the U.S. Federal, state, or local level.

    (b) Format for filing. Each such petition shall be submitted via the secure Commission web portal designated by the Commission and in the format designated by the Commission. The Commission will not accept petitions submitted in paper or in any other form or format. Petitions, including any attachments thereto, shall otherwise comply with the Commission's Handbook on MTB Filing Procedures as posted on the Commission's Web site.

    § 220.4 Time for filing.

    Petitions for duty suspensions and reductions and Commission disclosure forms must be filed not later than 60 days after the Commission publishes in the Federal Register and on its Web site a notice requesting members of the public to submit this information. The Commission will publish notice requesting such petitions and disclosure forms not later than October 15, 2016, and October 15, 2019.

    § 220.5 Contents of petition.

    The petition shall include the following information:

    (a) The name, telephone number, and postal and email address of the petitioner, and if appropriate, its representative in the matter;

    (b) A statement as to whether the petitioner is requesting an extension of an existing duty suspension or reduction or a new duty suspension or reduction; and if a duty reduction, the amount of the reduction;

    (c) A certification that the petitioner is a likely beneficiary of the proposed duty suspension or reduction;

    (d) An article description that meets the requirements of § 220.6 for the proposed duty suspension or reduction and identifies the permanent classification of the article in chapters 1-97 of the HTS and the Chemical Abstracts Service registry number (if applicable);

    (e) To the extent available—

    (1) A classification ruling of U.S. Customs and Border Protection (CBP) with respect to the article; and

    (2) A copy of CBP documentation indicating where the article is classified in the HTS.

    (f) A brief and general description of the article and its uses, and the names of the principal countries from which it is imported.

    (g) A brief description of the industry in the United States that uses the article.

    (h) For each HTS number included in the article description, an estimate of the total value (in United States dollars) of imports of the article for the calendar year preceding the year in which the petition is filed, for the calendar year in which the petition is filed, and for each of the 5 calendar years after the calendar year in which the petition is filed, including an estimate of the total value of such imports for each HTS article, by the person who submits the petition and by any other importers, if available.

    (i) The name of each person that imports the article, if available.

    (j) A description of any domestic production of the article, if available.

    (k) A Commission disclosure form as defined in § 220.2(d).

    (l) The names of any likely beneficiaries, and their contact information.

    (m) A certification that the petitioner has not separately filed, and has not withdrawn, a petition for duty suspension or reduction during the current filing cycle:

    (1) For an article that is identical to that in the current petition;

    (2) For an article whose article description includes the article covered by the current petition; or

    (3) For an article that is included in the scope of the current petition.

    (n) Such other information as the Commission may require.

    § 220.6 Article description.

    (a) In general. The article description in the petition shall be provided in a format appropriate to be included in the amendment to chapter 99 of the HTS and shall include language that:

    (1) Describes a specific class or kind of imported merchandise and provides any other information needed to distinguish the covered products from other goods;

    (2) Is suitable for incorporation in the HTS in the column entitled “Article Description” for each tariff heading in HTS chapter 99 that affords a temporary duty suspension or reduction;

    (3) Describes covered products in their condition as imported, based primarily upon the goods' discernible physical characteristics at the time of importation;

    (4) Is sufficiently clear as to be administrable by CBP; and

    (5) Is otherwise required by this part or accomplishes the purposes of the Act.

    (b) Article descriptions that are not recommended. The Commission will generally consider proposed article descriptions containing the following kinds of information or criteria as preventing the relevant petition from being recommended for inclusion in a miscellaneous tariff bill, unless input received from the U.S. Department of Commerce (Commerce) or CBP provides a basis for the Commission's analysis under the Act:

    (1) “Actual use” or “chief use” criteria;

    (2) Trade-marked or similarly protected terms or names, brand names, proprietary names, part numbers, or other company-specific names;

    (3) Language—

    (i) Describing goods that are illegal to import, where the petitioner is not a government entity;

    (ii) Describing goods that are covered by tariff-rate quota provisions; or

    (iii) Seeking to alter the tariff treatment provided in subchapter III or IV of chapter 99 of the HTS; or

    (4) An HTS subheading number(s) that would alter or attempt to alter the classification of the product in chapters 1 through 97 of the HTS.

    § 220.7 Properly filed petition.

    (a) In general. A petition will not be considered to be properly filed unless the petition and the Commission disclosure form are filed in accordance with and contain the information required by §§ 220.3 through 220.5

    (b) Identical and overlapping petitions. (1) A petition will not be considered to be properly filed if the petitioner has previously filed, and has not withdrawn, a petition for duty suspension or reduction during the current filing cycle:

    (i) For an article that is identical to that in the current petition;

    (ii) For an article whose article description includes the article covered by the current petition; or

    (iii) For an article that is included in the scope of the current petition.

    (2) Should the Commission find that a petitioner has filed one or more identical or overlapping petitions and that such earlier filed petitions have not been withdrawn, the Commission will generally consider the earliest filed pending petition to be the petition of the petitioner.

    § 220.8 Consolidation of petitions.

    Should the Commission receive petitions for duty suspensions or reductions from multiple petitioners for identical or overlapping articles classified in the same HTS subheading or subheadings, the Commission may consolidate the petitions and publish a single recommendation so that a single proposed HTS chapter 99 provision for the articles is presented in the Commission's preliminary and final reports.

    § 220.9 Withdrawal of petitions, amendments to petitions.

    (a) Withdrawal of petitions. A petitioner may withdraw a petition for duty suspension or reduction filed under this part at any time prior to the date on which the Commission submits its final report. It shall do so by notifying the Commission through the Commission's designated secure web portal of its withdrawal and the notification shall include the name of the petitioner, the Commission identification number for the petition, and the HTS number for the article concerned.

    (b) Submission of new petition. A petitioner who withdraws a petition for duty suspension or reduction that was timely filed under § 220.4 may submit a new petition, but only during the 60-day period described in § 220.4.

    (c) Amendments to petitions. A petitioner may not amend or otherwise change a petition once it is submitted. If a petitioner wishes to amend or otherwise change a petition, such as to correct an error, the petitioner must withdraw the petition and file a new petition containing the changes in accordance with paragraphs (a) and (b) of this section.

    § 220.10 Commission review of petitions and disclosure forms.

    (a) Commission publication and public availability. Not later than 30 days after expiration of the 60-day period for filing petitions for duty suspensions and reductions, the Commission will publish on its Web site the petitions for duty suspensions and reductions submitted under § 220.3 that were timely filed and contain the information required under § 220.5. When circumstances allow, the Commission may post such petitions on its Web site earlier than 30 days after expiration of the 60-day period for filing petitions.

    (b) Public comment. Not later than 30 days after expiration of the 60-day period for filing petitions, the Commission will also publish in the Federal Register and on its Web site a notice requesting members of the public to submit comments on the petitions for duty suspensions and reductions. To be considered, such comments must be filed through the Commission's secure web portal during the 45-day period following publication of the Commission's notice requesting comments from members of the public. Comments, including any attachments thereto, must otherwise comply with the Commission's Handbook on MTB Filing Procedures as posted on the Commission's Web site. For purposes of this section, all petitions posted by the Commission on its Web site, whether or not posted early, shall be deemed to be officially published by the Commission on its Web site on the date of publication of the notice seeking written comments from members of the public on the petitions.

    § 220.11 Commission preliminary report.

    (a) Not later than 150 days after the Commission publishes the petitions and Commission disclosure forms submitted, the Commission will submit a preliminary report on the petitions filed to the Committees. The report will include the following information for each petition filed—

    (1) The HTS heading or subheading in which each article that is the subject of a petition is classified, as identified by documentation supplied to the Commission and any supporting information obtained by the Commission.

    (2) A determination of whether or not domestic production of the article that is the subject of the petition exists, taking into account the report of the Secretary of Commerce under section 3(c)(1) of the Act, and, if such production exists, whether or not a domestic producer of the article objects to the duty suspension or reduction.

    (3) Any technical changes to the description of the article that is the subject of the petition for the duty suspension or reduction that are necessary for purposes of administration when the article is presented for importation, taking into account the report of the Secretary of Commerce under section 3(c)(2) of the Act.

    (4) An estimate of the amount of loss in revenue to the United States that would no longer be collected if the duty suspension or reduction takes effect.

    (5) A determination of whether or not the duty suspension or reduction is available to any person that imports the article that is the subject of the duty suspension or reduction.

    (6) The likely beneficiaries of each duty suspension or reduction, including whether the petitioner is a likely beneficiary.

    (b) The preliminary report will also include the following information:

    (1) A list of petitions for duty suspensions and reductions that meet the requirements of the Act without modifications.

    (2) A list of petitions for duty suspensions and reductions for which the Commission recommends technical corrections (i.e., corrections to the article description that do not otherwise substantially alter the scope or HTS classification of the articles covered by the petition) in order to meet the requirements of the Act, with the correction specified.

    (3) A list of petitions for duty suspensions and reductions for which the Commission recommends modifications to the amount of the duty suspension or reduction that is the subject of the petition to comply with the requirements of the Act, with the modification specified.

    (4) A list of petitions for duty suspensions and reductions for which the Commission recommends modifications to the scope of the articles that are the subject of the petitions in order to address objections by domestic producers to such petitions, with the modifications specified.

    (5) A list of the following:

    (i) Petitions for duty suspensions and reductions that the Commission has determined do not contain the information required under section 3(b)(2) of the Act.

    (ii) Petitions for duty suspensions and reductions with respect to which the Commission has determined the petitioner is not a likely beneficiary.

    (6) A list of petitions for duty suspensions and reductions that the Commission does not recommend for inclusion in a miscellaneous tariff bill, other than petitions specified in section 3(b)(3)(C)(ii)(V) of the Act.

    (c) The Commission will forward to the Committees any additional information submitted to the Commission by the Secretary of Commerce after the Commission transmits its preliminary report.

    § 220.12 Commission final report.

    (a) The Commission will submit its final report on each petition for a duty suspension or reduction specified in the preliminary report to the Committees not later than 60 days after the Commission submits its preliminary report. The final report will contain the following information—

    (1) The information required to be included in a preliminary report under section 3(b)(3)(C)(i)-(ii) of the Act and updated as appropriate after considering any information submitted by the Committees under section 3(b)(3)(D) of the Act.

    (2) A determination of the Commission whether—

    (i) The duty suspension or reduction can likely be administered by U.S. Customs and Border Protection;

    (ii) The estimated loss in revenue to the United States from the duty suspension or reduction does not exceed $500,000 in a calendar year during which the duty suspension or reduction would be in effect; and

    (iii) The duty suspension or reduction is available to any person importing the articles that is the subject of the duty suspension or reduction.

    (b) [Reserved]

    § 220.13 Confidential business information.

    (a) In general. The Commission will not release information which the Commission considers to be confidential business information within the meaning of § 201.6(a) of this chapter unless the party submitting the confidential business information had notice, at the time of submission, that such information would be released by the Commission, or such party subsequently consents to the release of the information.

    (b) Exceptions. (1) In calculating the estimated revenue loss required under the Act, the Commission may base its estimates in whole or in part on the estimated values of imports submitted by petitioners in their petitions.

    (2) The Commission may disclose some or all of the confidential business information provided to the Commission in petitions and public comments to the U.S. Department of Commerce for use in preparing its report to the Commission and the Committees, and to the U.S. Department of Agriculture and CBP for use in providing information for Commerce's report.

    § 220.14 Application of other Commission rules.

    Commission rules applicable to the initiation and conduct of investigations, including rules set out in subpart B of part 201 of this chapter (except § 201.9 (methods employed in obtaining information), § 201.14(a) (computation of time), and § 201.15 (attorneys or agents)), shall not apply to Commission proceedings under this part.

    By order of the Commission.

    Issued: September 21, 2016. Lisa R. Barton, Secretary to the Commission.
    [FR Doc. 2016-23229 Filed 9-29-16; 8:45 am] BILLING CODE 7020-02-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 510, 520, 522, 524, 529, and 558 [Docket No. FDA-2016-N-0002] New Animal Drugs; Approval of New Animal Drug Applications; Change of Sponsor's Address AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final rule; technical amendment.

    SUMMARY:

    The Food and Drug Administration (FDA, we) is amending the animal drug regulations to reflect application-related actions for new animal drug applications (NADAs) and abbreviated new animal drug applications (ANADAs) during July and August 2016. FDA is also informing the public of the availability of summaries of the basis of approval and of environmental review documents, where applicable. The animal drug regulations are also being amended to reflect a change of a sponsor's address.

    DATES:

    This rule is effective September 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    George K. Haibel, Center for Veterinary Medicine (HFV-6), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-402-5689, [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Approval Actions

    FDA is amending the animal drug regulations to reflect approval actions for NADAs and ANADAs during July and August 2016, as listed in table 1. In addition, FDA is informing the public of the availability, where applicable, of documentation of environmental review required under the National Environmental Policy Act (NEPA) and, for actions requiring review of safety or effectiveness data, summaries of the basis of approval (FOI Summaries) under the Freedom of Information Act (FOIA). These public documents may be seen in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday. Persons with access to the Internet may obtain these documents at the CVM FOIA Electronic Reading Room: http://www.fda.gov/AboutFDA/CentersOffices/OfficeofFoods/CVM/CVMFOIAElectronicReadingRoom/default.htm. Marketing exclusivity and patent information may be accessed in FDA's publication, Approved Animal Drug Products Online (Green Book) at: http://www.fda.gov/AnimalVeterinary/Products/ApprovedAnimalDrugProducts/default.htm.

    Table 1—Original and Supplemental NADAs and ANADAs Approved During July and August 2016 Approval date File No. Sponsor Product name Species Effect of the action/indications for use Public
  • documents
  • July 24, 2016 141-458 Merial, Inc., 3239 Satellite Blvd., bldg. 500, Duluth, GA 30096-4640 EQUIOXX (firocoxib) Tablets Horses Original approval for the control of pain and inflammation associated with osteoarthritis in horses FOI Summary. July 20, 2016 141-459 Intervet, Inc., 2 Giralda Farms, Madison, NJ 07940 BRAVECTO (fluralaner topical solution) for Dogs
  • BRAVECTO (fluralaner topical solution) for Cats
  • Dogs, cats Original approval for killing adult fleas, for the treatment and prevention of flea infestations, and for the treatment and control of tick infestations in dogs and cats FOI Summary.
    August 12, 2016 141-461 Aratana Therapeutics, Inc., 11400 Tomahawk Creek Pkwy., Leawood, KS 66211 NOCITA (bupivacaine liposome injectable suspension) Dogs Original approval to provide local postoperative analgesia for cranial cruciate ligament surgery in dogs FOI Summary. July 1, 2016 200-501 Cross Vetpharm Group Ltd. Broomhill Rd., Tallaght, Dublin 24, Ireland Praziquantel (praziquantel) Injection Dogs Original approval of a generic copy of NADA 111-607 FOI Summary. August 5, 2016 200-508 Cross Vetpharm Group Ltd. Broomhill Rd., Tallaght, Dublin 24, Ireland BILOVET (tylosin) Injection Cattle, swine Original approval of a generic copy of NADA 012-965 FOI Summary.
    II. Change of Sponsor's Address

    Nexcyon Pharmaceuticals, Inc., 644 West Washington Ave., Madison, WI 53719 has informed FDA that it has changed its address to P.O. Box 259158, Madison, WI 53725. Accordingly, the regulations at 21 CFR 510.600(c) will be amended to reflect this sponsor's change of address.

    III. Technical Amendments

    FDA has noticed that drug labeler codes (DLCs) in several sections of part 558 (21 CFR part 558) do not accurately reflect the sponsorship of a new animal drug application. At this time, we are amending part 558 to remove these DLCs. Also, FDA is amending the regulations to revise a human food safety warning for tulathromycin injectable solution in 21 CFR 522.2630 and to correct a cross-reference for combination medicated feeds in § 558.128 (21 CFR 558.128). These actions are being taken to improve the accuracy of the regulations.

    The restrictions for veterinary feed directive (VFD) drugs in part 558 are being revised to reflect a uniform text. In addition, we are revising § 558.59 to reflect a current format. These actions are being taken to improve the clarity of the regulations.

    This rule does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a rule of “particular applicability.” Therefore, it is not subject to the congressional review requirements in 5 U.S.C. 801-808.

    List of Subjects 21 CFR Part 510

    Administrative practice and procedure, Animal drugs, Labeling, Reporting and recordkeeping requirements.

    21 CFR Parts 520, 522, 524, and 529

    Animal drugs.

    21 CFR Part 558

    Animal drugs, Animal feeds.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR parts 510, 520, 522, 524, 529, and 558 are amended as follows:

    PART 510—NEW ANIMAL DRUGS 1. The authority citation for part 510 continues to read as follows: Authority:

    21 U.S.C. 321, 331, 351, 352, 353, 360b, 371, 379e.

    § 510.600 [Amended]
    2. Revise § 510.600 as follows: a. In the table in paragraph (c)(1): i. In the entries for “Cronus Pharma LLC”, “HQ Specialty Pharma Corp.”, “OXIS International, Inc.”, “Pharmgate LLC “, “Putney, Inc.”, “SmartVet USA, Inc.”, and “Wildlife Laboratories, Inc.”, remove “Suite” and in its place add “suite”; ii. In the entry for “Merial, Inc.”, remove “Bldg.” and in its place add “bldg.”; iii. In the entry for “Nexcyon Pharmaceuticals, Inc.”, remove “644 West Washington Ave., Madison, WI 53719” and in its place add “P.O. Box 259158, Madison, WI 53725”; b. In the table in paragraph (c)(2): i. In the entries for “024991”, “026637”, “042791”, “053923”, “069043”, “069254”, and “086001”, remove “Suite” and in its place add “suite”; ii. In the entry for “050604”, remove “Bldg.” and in its place add “bldg.”; and iii. In the entry for “050929”, remove “644 West Washington Ave., Madison, WI 53719” and in its place add “P.O. Box 259158, Madison, WI 53725”. PART 520—ORAL DOSAGE FORM NEW ANIMAL DRUGS 3. The authority citation for part 520 continues to read as follows: Authority:

    21 U.S.C. 360b

    4. In § 520.928, revise paragraph (c) to read as follows:
    § 520.928 Firocoxib tablets.

    (c) Conditions of use—(1) Dogs—(i) Amount. 5 mg/kg (2.27 mg/lb) body weight. Administer once daily for osteoarthritis. Administer approximately 2 hours before soft tissue or orthopedic surgery.

    (ii) Indications for use. For the control of pain and inflammation associated with osteoarthritis; and for the control of postoperative pain and inflammation associated with soft-tissue and orthopedic surgery.

    (iii) Limitations. Federal law restricts this drug to use by or on the order of a licensed veterinarian.

    (2) Horses—(i) Amount. Administer one 57-mg tablet to horses weighing 800 to 1,300 lb once daily for up to 14 days.

    (ii) Indications for use. For the control of pain and inflammation associated with osteoarthritis.

    (iii) Limitations. Do not use in horses intended for human consumption. Federal law restricts this drug to use by or on the order of a licensed veterinarian.

    § 520.2345c [Amended]
    5. In § 520.2345c, remove paragraph (d)(1)(iii).
    PART 522—IMPLANTATION OR INJECTABLE DOSAGE FORM NEW ANIMAL DRUGS 6. The authority citation for part 522 continues to read as follows: Authority:

    21 U.S.C. 360b.

    7. Add § 522.224 to read as follows:
    § 522.224 Bupivacaine.

    (a) Specifications. Each milliliter (mL) of liposomal suspension contains 13.3 milligrams (mg) bupivacaine.

    (b) Sponsor. See No. 086026 in § 510.600(c) of this chapter.

    (c) Conditions of use in dogs—(1) Amount. Administer 5.3 mg/kg (0.4 mL/kg) by infiltration injection into the tissue layers at the time of incisional closure.

    (2) Indications for use. For single-dose infiltration into the surgical site to provide local postoperative analgesia for cranial cruciate ligament surgery in dogs.

    (3) Limitations. Federal law restricts this drug to use by or on the order of a licensed veterinarian.

    8. In § 522.1870, revise paragraphs (a), (c)(1)(i) and (iii), and (c)(2)(i) and (iii) to read as follows:
    § 522.1870 Praziquantel.

    (a) Specifications. Each milliliter (mL) of solution contains 56.8 milligrams of praziquantel.

    (c) * * *

    (1) * * *

    (i) Amount. Administer by subcutaneous or intramuscular injection for dogs and puppies 5 pounds (lb) and under, 0.3 mL; for 6 to 10 lb, 0.5 mL; for 11 to 25 lb, 1.0 mL; if over 25 lb, 0.2 mL/5 lb body weight to a maximum of 3 mL.

    (iii) Limitations. Federal law restricts the drug to use by or on the order of a licensed veterinarian.

    (2) * * *

    (i) Amount. Administer by subcutaneous or intramuscular injection for cats and kittens under 5 lb, 0.2 mL; 5 to 10 lb, 0.4 mL; 11 lb and over, 0.6 mL maximum.

    (iii) Limitations. Federal law restricts the drug to use by or on the order of a licensed veterinarian.

    9. In § 522.2630, revise paragraph (d)(1)(iii)(A) to read as follows:
    § 522.2630 Tulathromycin.

    (d) * * *

    (1) * * *

    (iii) * * *

    (A) Cattle intended for human consumption must not be slaughtered within 18 days from the last treatment. This drug is not approved for use in female dairy cattle 20 months of age or older, including dry dairy cows. Use in these cattle may cause drug residues in milk and/or in calves born to these cows. Federal law restricts this drug to use by or on the order of a licensed veterinarian.

    10. Revise § 522.2640 to read as follows:
    § 522.2640 Tylosin.

    (a) Specifications. Each milliliter (mL) of solution contains 50 or 200 milligrams (mg) of tylosin activity (as tylosin base).

    (b) Sponsors. See sponsors in § 510.600(c) of this chapter as follows:

    (1) No. 000986 for use of 50- or 200-mg/mL solutions as in paragraph (e) of this section.

    (2) Nos. 000010 and 061623 for use of a 200-mg/mL solution as in paragraphs (e)(1) and (2) of this section.

    (c) Related tolerances. See § 556.740 of this chapter.

    (d) Special considerations. Labeling must bear the warning statements: “Do not administer to horses or other equines. Injection of tylosin in equines has been fatal.”

    (e) Conditions of use—(1) Beef cattle and nonlactating dairy cattle—(i) Amount. Administer 8 mg per pound (mg/lb) of body weight by intramuscular injection once daily for not more than 5 consecutive days. Continue treatment 24 hours after symptoms disappear.

    (ii) Indications for use. Treatment of bovine respiratory complex (shipping fever, pneumonia) usually associated with Pasteurella multocida and Arcanobacterium pyogenes; foot rot (necrotic pododermatitis) and calf diphtheria caused by Fusobacterium necrophorum and metritis caused by A. pyogenes.

    (iii) Limitations. Do not inject more than 10 mL per site. Use a 50-mg/mL solution for calves weighing less than 200 pounds. Cattle intended for human consumption must not be slaughtered within 21 days of the last use of this drug product. This drug product is not approved for use in female dairy cattle 20 months of age or older, including dry dairy cows. Use in these cattle may cause drug residues in milk and/or in calves born to these cows. This product is not approved for use in calves intended to be processed for veal. A withdrawal period has not been established in preruminating calves.

    (2) Swine—(i) Amount. Administer 4 mg/lb of body weight by intramuscular injection twice daily for not more than 3 consecutive days. Continue treatment 24 hours after symptoms disappear. If tylosin medicated drinking water is used as a followup treatment for swine dysentery, the animal should thereafter receive feed containing 40 to 100 grams of tylosin per ton for 2 weeks to assure depletion of tissue residues.

    (ii) Indications for use. Treatment of swine arthritis caused by Mycoplasma hyosynoviae; swine pneumonia caused by Pasteurella spp.; swine erysipelas caused by Erysipelothrix rhusiopathiae; swine dysentery associated with Treponema hyodysenteriae when followed by appropriate medication in the drinking water and/or feed.

    (iii) Limitations. Do not inject more than 5 mL per site. Adverse reactions, including shock and death may result from overdosage in baby pigs. It is recommended that tylosin 50-mg/mL injection be used in pigs weighing less than 25 lbs. Swine intended for human consumption must not be slaughtered within 14 days of the last use of this drug product.

    (3) Dogs and cats—(i) Amount. Administer 3 to 5 mg/lb of body weight by intramuscular injection at 12- to 24-hour intervals.

    (ii) Indications for use—(A) Dogs. Treatment of upper respiratory infections such as bronchitis, tracheobronchitis, tracheitis, laryngitis, tonsillitis, and pneumonia caused by Staphylococci spp., hemolytic Streptococci spp., and Pasteurella multocida.

    (B) Cats. Treatment of upper respiratory infections when caused by Staphylococci spp. and hemolytic Streptococci spp. and for feline pneumonitis when caused by tylosin-susceptible organisms.

    (iii) Limitations. Federal law restricts this drug to use by or on the order of a licensed veterinarian.

    PART 524—OPHTHALMIC AND TOPICAL DOSAGE FORM NEW ANIMAL DRUGS 11. The authority citation for part 524 continues to read as follows: Authority:

    21 U.S.C. 360b.

    12. Add § 524.998 to read as follows:
    § 524.998 Fluralaner.

    (a) Specifications. Each milliliter of solution contains 280 milligrams (mg) fluralaner.

    (b) Sponsor. See No. 000061 in § 510.600(c) of this chapter.

    (c) Conditions of use—(1) Dogs—(i) Amount. Administer topically as a single dose every 12 weeks according to the label dosage schedule to provide a minimum dose of 11.4 mg/lb (25 mg/kg) body weight. May be administered every 8 weeks in case of potential exposure to Amblyomma americanum ticks.

    (ii) Indications for use. Kills adult fleas; for the treatment and prevention of flea infestations (Ctenocephalides felis) and the treatment and control of tick infestations (Ixodes scapularis (black-legged tick), Dermacentor variabilis (American dog tick), and Rhipicephalus sanguineus (brown dog tick)) for 12 weeks in dogs and puppies 6 months of age and older, and weighing 4.4 lb or greater; for the treatment and control of A. americanum (lone star tick) infestations for 8 weeks in dogs and puppies 6 months of age and older, and weighing 4.4 lb or greater.

    (iii) Limitations. Federal law restricts this drug to use by or on the order of a licensed veterinarian.

    (2) [Reserved]

    PART 529—CERTAIN OTHER DOSAGE FORM NEW ANIMAL DRUGS 13. The authority citation for part 529 continues to read as follows: Authority:

    21 U.S.C. 360b.

    § 529.400 [Amended]
    14. In § 529.400, in paragraph (a), remove footnote 1.
    PART 558—NEW ANIMAL DRUGS FOR USE IN ANIMAL FEEDS 15. The authority citation for part 558 continues to read as follows: Authority:

    21 U.S.C. 354, 360b, 360ccc, 360ccc-1, 371.

    § 558.58 [Amended]
    16. In § 558.58, in paragraph (e)(6), remove “3.6” and in its place add “36.6”. 17. Revise § 558.59 to read as follows:
    § 558.59 Apramycin.

    (a) Specifications. Each pound of Type A article contains 75 grams apramycin (as apramycin sulfate).

    (b) Sponsor. See No. 058198 in § 510.600(c) of this chapter.

    (c) [Reserved]

    (d) Related tolerances. See § 556.52 of this chapter.

    (e) Conditions of use in swine—(1) Amount. Feed at 150 grams apramycin per ton of Type C medicated feed as the sole ration for 14 consecutive days.

    (2) Indications for use. For control of porcine colibacillosis (weanling pig scours) caused by susceptible strains of Escherichia coli.

    (3) Limitations. Withdraw 28 days before slaughter.

    § 558.68 [Amended]
    18. In § 558.68, redesignate paragraphs (c) and (d) as paragraphs (d) and (c); and in paragraphs (e)(1)(i) and (e)(2)(i), remove “000986” and in its place add “058198”.
    § 558.128 [Amended]
    19. In § 558.128, in paragraph (e)(7)(xi), remove “§ 558.600” and in its place add ″§ 558.612″.
    § 558.195 [Amended]
    20. In § 558.195, in paragraph (e)(1)(vi), remove “000009” and in its place add “054771”; and in paragraphs (e)(2)(iii) and (v), remove “000986” wherever it appears and in its place add “058198”.
    § 558.261 [Amended]
    21. In § 558.261, redesignate paragraphs (c) and (d) as paragraphs (d) and (c).
    § 558.295 [Amended]
    22. In § 558.295, remove and reserve paragraph (b). 23. In § 558.325, revise paragraph (d)(3) to read as follows:
    § 558.325 Lincomycin.

    (d) * * *

    (3) Labeling of Type A medicated articles and single-ingredient Type B and Type C medicated feeds containing lincomycin intended for use in swine shall bear the following caution statement: “The effects of lincomycin on swine reproductive performance, pregnancy, and lactation have not been determined. Not for use in swine intended for breeding when lincomycin is fed at 20 grams per ton of complete feed.”

    § 558.342 [Amended]
    24. In § 558.342, in paragraphs (e)(1)(iv),(ix), (x), and (xi), remove “000986” wherever it appears and in its place add “058198”.
    § 558.366 [Amended]
    25. In § 558.366, in paragraph (d), in the entry for “113.5 (0.0125 pct)”, remove “000986” and in its place add “058198”.
    § 558.618 [Amended]
    26. In § 558.618, redesignate paragraphs (c) and (d) as paragraphs (d) and (c). 27. In § 558.633, revise paragraph (d)(1) to read as follows:
    § 558.633 Tylvalocin.

    (d) * * *

    (1) Federal law restricts medicated feed containing this veterinary feed directive (VFD) drug to use by or on the order of a licensed veterinarian. See § 558.6 for additional requirements.

    Dated: September 21, 2016. Tracey Forfa, Deputy Director, Center for Veterinary Medicine.
    [FR Doc. 2016-23230 Filed 9-29-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 573 [Docket No. FDA-2014-F-0988] Food Additives Permitted in Feed and Drinking Water of Animals; Feed Grade Sodium Formate AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final rule.

    SUMMARY:

    The Food and Drug Administration (FDA, we, the Agency) is amending the regulations for food additives permitted in feed and drinking water of animals to provide for the safe use of feed grade sodium formate as a feed acidifying agent in complete swine feeds. This action is in response to a food additive petition filed by BASF Corp.

    DATES:

    This rule is effective September 30, 2016. Submit either electronic or written objections and requests for a hearing by October 31, 2016. See section V of this document for further information on the filing of objections.

    ADDRESSES:

    You may submit objections and requests for a hearing as follows:

    Electronic Submissions

    Submit electronic objections in the following way:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Objections submitted electronically, including attachments, to http://www.regulations.gov will be posted to the docket unchanged. Because your objection will be made public, you are solely responsible for ensuring that your objection does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your objection, that information will be posted on http://www.regulations.gov.

    • If you want to submit an objection with confidential information that you do not wish to be made available to the public, submit the objection as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper objections submitted to the Division of Dockets Management, FDA will post your objection, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2014-F-0988 for “Food Additives Permitted in Feed and Drinking Water of Animals; Feed Grade Sodium Formate.” Received objections will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at http://www.regulations.gov or at the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

    Confidential Submissions—To submit an objection with confidential information that you do not wish to be made publicly available, submit your objections only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on http://www.regulations.gov. Submit both copies to the Division of Dockets Management. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your objections and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: http://www.fda.gov/regulatoryinformation/dockets/default.htm.

    Docket: For access to the docket to read background documents or the electronic and written/paper objections received, go to http://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Division of Dockets Management, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Chelsea Trull, Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-402-6729, [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    In a document published in the Federal Register of July 25, 2014 (79 FR 43325), FDA announced that we had filed a food additive petition (animal use) (FAP 2286) submitted by BASF Corp., 100 Park Ave., Florham Park, NJ 07932. The petition proposed that the regulations for food additives permitted in feed and drinking water of animals be amended to provide for the safe use of feed grade sodium formate as a feed acidifying agent in complete swine feeds. The notice of petition provided for a 30-day comment period on the petitioner's request for categorical exclusion from preparing an environmental assessment or environmental impact statement.

    In addition, the petition proposed that the animal food additive regulations for formic acid and ammonium formate be amended to limit formic acid and formate salts from all added sources to 1.2 percent of complete feeds. This element of the petition was not described in the July 2014 notice of petition.

    Elsewhere in this issue of the Federal Register, FDA is providing notice of BASF Corp.'s proposal that FDA amend the food additive regulations for formic acid and ammonium formate to limit formic acid and formate salts from all added sources to 1.2 percent of complete feed when multiple sources of formic acid and its salts are used in combination.

    II. Conclusion

    FDA concludes that the data establish the safety and utility of feed grade sodium formate for use as a feed acidifying agent in complete swine feeds and that the food additive regulations should be amended as set forth in this document.

    III. Public Disclosure

    In accordance with § 571.1(h) (21 CFR 571.1(h)), the petition and documents we considered and relied upon in reaching our decision to approve the petition will be made available for public disclosure (see FOR FURTHER INFORMATION CONTACT). As provided in § 571.1(h), we will delete from the documents any materials that are not available for public disclosure.

    IV. Analysis of Environmental Impact

    The Agency has determined under 21 CFR 25.32(r) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment, nor an environmental impact statement is required.

    V. Objections and Hearing Requests

    Any person who will be adversely affected by this regulation may file with the Division of Dockets Management (see ADDRESSES) either electronic or written objections. Each objection shall be separately numbered, and each numbered objection shall specify with particularity the provision of the regulation to which objection is made and the grounds for the objection. Each numbered objection on which a hearing is requested shall specifically so state. Failure to request a hearing for any particular objection shall constitute a waiver of the right to a hearing on that objection. Each numbered objection for which a hearing is requested shall include a detailed description and analysis of the specific factual information intended to be presented in support of the objection in the event that a hearing is held. Failure to include such a description and analysis for any particular objection shall constitute a waiver of the right to a hearing on the objection.

    Any objections received in response to the regulation may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at http://www.regulations.gov.

    List of Subjects in 21 CFR Part 573

    Animal feeds, Food additives.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs and redelegated to the Center for Veterinary Medicine, 21 CFR part 573 is amended as follows:

    PART 573—FOOD ADDITIVES PERMITTED IN FEED AND DRINKING WATER OF ANIMALS 1. The authority citation for part 573 continues to read as follows: Authority:

    21 U.S.C. 321, 342, 348.

    2. Add § 573.696 to read as follows:
    § 573.696 Feed grade sodium formate.

    The food additive, feed grade sodium formate, may be safely used in the manufacture of complete swine feeds in accordance with the following prescribed conditions:

    (a) The additive is manufactured by the reaction of 99 percent formic acid and 50 percent sodium hydroxide in water to produce a solution made up of at least 20.5 percent sodium salt of formic acid and not more than 61 percent formic acid.

    (b) The additive is used or intended for use as a feed acidifying agent, to lower the pH, in complete swine feeds at levels not to exceed 1.2 percent of the complete feed.

    (c) To assure safe use of the additive, formic acid and formate salts from all added sources cannot exceed 1.2 percent of complete feed when multiple sources of formic acid and its salts are used in combination.

    (d) To assure safe use of the additive, in addition to the other information required by the Federal Food, Drug, and Cosmetic Act, the label and labeling shall contain:

    (1) The name of the additive.

    (2) Adequate directions for use, including a statement that feed grade sodium formate must be uniformly applied and thoroughly mixed into complete feeds and that the complete feeds so treated shall be labeled as containing feed grade sodium formate.

    (3) Cautions for use including this statement: Caution: Follow label directions. Formic acid and formate salts from all added sources cannot exceed 1.2 percent of complete feed when multiple sources of formic acid and its salts are used in combination.

    (e) To assure safe use of the additive, in addition to the other information required by the act and paragraph (d) of this section, the label and labeling shall contain:

    (1) Appropriate warnings and safety precautions concerning feed grade sodium formate.

    (2) Statements identifying feed grade sodium formate as a corrosive and possible severe irritant.

    (3) Information about emergency aid in case of accidental exposure as follows:

    (i) Statements reflecting requirements of applicable sections of the Superfund Amendments and Reauthorization Act (SARA), and the Occupational Safety and Health Administration (OSHA) human safety guidance regulations.

    (ii) Contact address and telephone number for reporting adverse reactions or to request a copy of the Material Safety Data Sheet (MSDS).

    Dated: September 26, 2016. Tracey H. Forfa, Deputy Director, Center for Veterinary Medicine.
    [FR Doc. 2016-23671 Filed 9-29-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 882 [Docket No. FDA 2016-N-2677] Medical Devices; Neurological Devices; Classification of the Evoked Photon Image Capture Device AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final order.

    SUMMARY:

    The Food and Drug Administration (FDA) is classifying the Evoked Photon Image Capture Device into class I (general controls). The Agency is classifying the device into class I (general controls) in order to provide a reasonable assurance of safety and effectiveness of the device.

    DATES:

    This order is effective September 30, 2016. The classification was applicable on July 15, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Kristen Bowsher, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 2646, Silver Spring, MD 20993-0002, 301-796-6448, [email protected]

    SUPPLEMENTARY INFORMATION: I. Background

    In accordance with section 513(f)(1) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360c(f)(1)), devices that were not in commercial distribution before May 28, 1976 (the date of enactment of the Medical Device Amendments of 1976), generally referred to as postamendments devices, are classified automatically by statute into class III without any FDA rulemaking process. These devices remain in class III and require premarket approval, unless and until the device is classified or reclassified into class I or II, or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i), to a predicate device that does not require premarket approval. The Agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807) of the regulations.

    Section 513(f)(2) of the FD&C Act (21 U.S.C. 360c(f)(2)), as amended by section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144), provides two procedures by which a person may request FDA to classify a device under the criteria set forth in section 513(a)(1). Under the first procedure, the person submits a premarket notification under section 510(k) of the FD&C Act for a device that has not previously been classified and, within 30 days of receiving an order classifying the device into class III under section 513(f)(1), the person requests a classification under section 513(f)(2). Under the second procedure, rather than first submitting a premarket notification under section 510(k) and then a request for classification under the first procedure, the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence and requests a classification under section 513(f)(2) of the FD&C Act. If the person submits a request to classify the device under this second procedure, FDA may decline to undertake the classification request if FDA identifies a legally marketed device that could provide a reasonable basis for review of substantial equivalence with the device or if FDA determines that the device submitted is not of “low-moderate risk” or that general controls would be inadequate to control the risks and special controls to mitigate the risks cannot be developed.

    In response to a request to classify a device under either procedure provided by section 513(f)(2) of the FD&C Act, FDA shall classify the device by written order within 120 days. This classification will be the initial classification of the device. On January 12, 2015, EPIC Research & Diagnostics, Inc. submitted a request for classification of the EPIC ClearViewTM System under section 513(f)(2) of the FD&C Act.

    In accordance with section 513(f)(2) of the FD&C Act, FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1). FDA classifies devices into class I if general controls by themselves are sufficient to provide reasonable assurance of safety and effectiveness of the device for its intended use. After review of the information submitted in the de novo request, FDA determined that the device can be classified into class I. FDA believes general controls will provide reasonable assurance of the safety and effectiveness of the device.

    Therefore, on July 15, 2016, FDA issued an order to the requestor classifying the device into class I. FDA is codifying the classification of the device by adding 21 CFR 882.1561.

    The device is assigned the generic name evoked photon image capture device, and it is identified as a prescription, electrically-powered device intended for use as a non-invasive measurement tool that applies electricity to detect electrophysiological signals emanating from the skin, which are reported numerically and as images without clinical interpretation. The device is not intended for diagnostic purposes.

    FDA has identified the following risks to health associated specifically with this type of device: Adverse tissue reaction, electromagnetic incompatibility, and electromagnetic malfunction (e.g., shock).

    Evoked photon image capture devices are not safe for use except under the supervision of a practitioner licensed by law to direct the use of the device. As such, the device is a prescription device and must satisfy prescription labeling requirements (see 21 CFR 801.109 Prescription devices).

    II. Analysis of Environmental Impact

    The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

    III. Paperwork Reduction Act of 1995

    This final order refers to previously approved collections of information found in other FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in part 807, subpart E, regarding premarket notification submissions have been approved under OMB control number 0910-0120, and the collections of information in 21 CFR part 801, regarding labeling have been approved under OMB control number 0910-0485.

    List of Subjects in 21 CFR Part 882

    Medical devices, Neurological devices.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 882 is amended as follows:

    PART 882—NEUROLOGICAL DEVICES 1. The authority citation for part 882 continues to read as follows: Authority:

    21 U.S.C. 351, 360, 360c, 360e, 360j, 371.

    2. Add § 882.1561 to subpart B to read as follows:
    § 882.1561 Evoked photon image capture device.

    (a) Identification. An evoked photon image capture device is a prescription, electrically powered device intended for use as a noninvasive measurement tool that applies electricity to detect electrophysiological signals emanating from the skin, which are reported numerically and as images without clinical interpretation. The device is not intended for diagnostic purposes.

    (b) Classification. Class I (general controls). The device is exempt from the premarket notification procedures in subpart E of part 807 of this chapter, subject to the limitations in § 882.9.

    Dated: September 26, 2016. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2016-23633 Filed 9-29-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF STATE 22 CFR Part 51 [Public Notice: 9680] RIN 1400-AE01 Passports: Service Passports AGENCY:

    Department of State.

    ACTION:

    Interim final rule.

    SUMMARY:

    This rule amends a regulation that establishes the different types of passports issued by the Department of State. A definition for special issuance passports is added. Amendments establish a new service passport, which may be approved for certain non-personal services contractors who travel abroad in support of and pursuant to a contract with the U.S. government, and make corresponding changes regarding official and diplomatic passports. The service passport will demonstrate a contractual relationship between the bearer's employer and the U.S. government as the reason for travel, thereby continuing to demonstrate the individual's support function on behalf of the U.S. government, but nevertheless signaling a more attenuated relationship with the U.S. government than that enjoyed by direct hire employees. The U.S. government incurs significant additional cost annually in delays and fees because foreign governments do not recognize contractors as doing work for the U.S. government. By more clearly demonstrating the attenuated relationship, the Department will eliminate such waste. The regulation is amended to establish the validity of the new service passport and clarify the grounds for invalidity of a special issuance passport.

    DATES:

    This rule is effective on September 30, 2016. The Department of State will accept comments on this interim final rule until November 29, 2016.

    ADDRESSES:

    You may make comments by any of the following methods, and you must include the RIN in the subject line of your message.

    Mail (paper, disk, or CD-ROM submissions): ATTN: RIN 1400-AE01, U.S. Department of State, Office of Passport Services, Bureau of Consular Affairs (CA/PPT), Attn: CA/PPT/L, 44132 Mercure Circle, P.O. Box 1227, Sterling, Virginia 20166-1227.

    Email: [email protected]

    • Persons with access to the Internet may view this rule and submit comments by going to www.regulations.gov, and searching for docket number DOS-2016-0065.

    FOR FURTHER INFORMATION CONTACT:

    Michael Yohannan, Attorney Advisor, [email protected], (202) 485-6507.

    SUPPLEMENTARY INFORMATION:

    U.S. government activities overseas are often supported by non-personal services contracts, defined in 48 CFR 37.101 as contracts “under which the personnel rendering services are not subject, either by the contract's terms or by the manner of its administration, to the supervision and control usually prevailing in relationships between the U.S. government and its employees.” U.S. citizens employed under these contracts, sometimes referred to as non-personal services contractors, carry out critical security, maintenance and other functions on behalf of the U.S. government, often under difficult or dangerous circumstances. As a general rule these individuals conduct the travel associated with their contractual duties in support of the U.S. government with a regular passport. However, the Department is aware that there are limited circumstances in which non-personal services contractors traveling on regular passports experience difficulties when the purpose of their travel involves work conducted in support of the U.S. government. These difficulties annually cause significant cost to the U.S. government resulting from program delays and fees assessed to the Department. Contractors working on building projects who must travel intermittently out of country to renew visas are particularly affected by such difficulties because the U.S. government must bear the round-trip air travel costs, the hotel costs, and the per diem costs in addition to wage costs during often lengthy waits for a new visa. Foreign governments also charge large visa fees which then increase the costs of programs and building projects. In these instances, it is advantageous to the U.S. government to provide a passport that conveys that the traveler is abroad to conduct work in support of the U.S. government while simultaneously indicating that the traveler has a more attenuated relationship with the U.S. government that does not justify a diplomatic or official passport.

    The Department of State is creating a new type of passport, the “service passport,” to fulfill this function. The Department is further clarifying the limited circumstances under which a non-personal or personal services contractor may receive an official or diplomatic passport when in receipt of such request from a federal agency. The Department estimates that this rulemaking will affect approximately 1,000 non-personal services contractors per year.

    Under 22 U.S.C. 211a et seq., the Secretary of State has the authority to make rules for the granting and issuance of passports. To add clarity to the types of passports issued by the Department, § 51.1 of 22 CFR is being modified to add a definition of “special issuance passport.” The Department is modifying § 51.3 to authorize issuance of service passports and to clarify the eligibility criteria for official and diplomatic passports. The Department is further modifying § 51.4 to clarify the validity of special issuance passports, including the new service passport, and clarify the grounds for invalidity of a special issuance passport.

    Regulatory Findings

    The Department is publishing this rule as a final rule, effective on the date of publication, pursuant to the “good cause” exemption of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B). The Department finds that delaying the effect of this rule until after notice and comment would be impractical, unnecessary, and contrary to public interest. The Department finds that providing these individuals with travel documents that indicate that their travel is in support of the U.S. government while also signaling a more attenuated relationship with the U.S. government than that enjoyed by direct hire employees provides a compelling justification for an immediate effective date of this rule.

    In addition, this rulemaking is exempt from notice and comment pursuant to 5 U.S.C. 553(a)(1), because it involves a foreign affairs function of the United States. As noted above, contractors working on building projects often must travel intermittently out of country to renew visas, and foreign governments charge large visa fees whenever that occurs. The U.S. government must provide a passport that conveys that the traveler is abroad to conduct work in support of the U.S. government while simultaneously indicating that the traveler has a more attenuated relationship with the U.S. government that does not justify a diplomatic or official passport.

    Because this rule is exempt from 5 U.S.C. 553, it is effective on the date of publication. See 5 U.S.C. 553(d). However, the Department solicits—and welcomes—comments on this rulemaking, and will address relevant comments in a final rule.

    Regulatory Flexibility Act

    The Department, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this rule and, by approving it, certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities as defined in 5 U.S.C. 601(6).

    Unfunded Mandates Act of 1995

    This rule will not result in the expenditure by state, local, tribal, or territorial 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, 2 U.S.C. 1501 et seq.

    Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996, since it will not result in an annual effect on the economy of $100 million or more. See 5 U.S.C. 804(2).

    Executive Order 12866 and 13563

    The Department has reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in the Executive Orders and finds that the benefits of this rule outweigh any costs. This rule is not economically significant under Executive Order 12866, section 3(f)(1), because it will not have an annual effect on the economy of $100 million or more. The Department expects the rule's impact on the public to be minimal; therefore, the Department finds that the benefits of this rulemaking outweigh any costs. This rule has been designated as “non-significant” by the Office of Information and Regulatory Affairs.

    Executive Order 13132

    This rule 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 section 6 of Executive Order 13132, the Department has determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement.

    Executive Order 13175—Effect on Tribes

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

    Paperwork Reduction Act

    This rule does not impose or alter any reporting or record-keeping requirements under the Paperwork Reduction Act. The individuals who will be applying for the new service passports are those who would have applied for regular or official passports; therefore, the total burden on existing information collections is expected to remain constant. The OMB Control Numbers are 1405-0004 and 1405-0020.

    List of Subjects in 22 CFR Part 51

    Administrative practice and procedure, Drug traffic control, Passports and visas, Reporting and recordkeeping requirements.

    Accordingly, for the reasons stated in the preamble, 22 CFR part 51 is amended as follows:

    PART 51—PASSPORTS 1. The authority citation for Part 51 continues to read as follows: Authority:

    8 U.S.C. 1504; 18 U.S.C. 1621; 22 U.S.C. 211a, 212, 213, 213n (Pub. L. 106-113 Div. B, Sec. 1000(a)(7) [Div. A, Title II, Sec. 236], 113 Stat. 1536, 1501A-430); 214, 214a, 217a, 218, 2651a, 2671(d)(3), 2705, 2714, 2721, & 3926; 26 U.S.C. 6039E; 31 U.S.C. 9701; 42 U.S.C. 652(k) [Div. B, Title V of Pub. L. 103-317, 108 Stat. 1760]; E.O. 11295, Aug. 6, 1966, FR 10603, 3 CFR, 1966-1970 Comp., p. 570; Sec. 1 of Pub. L. 109-210, 120 Stat. 319; Sec. 2 of Pub. L. 109-167, 119 Stat. 3578; Sec. 5 of Pub. L. 109-472, 120 Stat. 3554; Pub. L. 108-447, Div. B, Title IV, Dec. 8, 2004, 118 Stat. 2809; Pub. L. 108-458, 118 Stat. 3638, 3823 (Dec. 17, 2004).

    2. Amend § 51.1 by removing the alphabetical paragraph designations and adding the definitions for non-personal services contractor, personal services contractor, and special issuance passport in alphabetical order to read as follows:
    § 51.1 Definitions.

    Non-personal services contractor, for purposes of this part, is an individual working under a non-personal services contract as defined in 48 CFR 37.101.

    Personal services contractor, for purposes of this part, means a contractor who is working under a personal services contract as described in 48 CFR 37.104.

    Special issuance passport means a regular passport for which no passport fee is collected pursuant to § 51.52, and a service, official or diplomatic passport as defined in § 51.3.

    3. Revise § 51.3 to read as follows:
    § 51.3 Types of passports.

    (a) Regular passport. A regular passport is issued to a national of the United States.

    (b) Service passport. When authorized by the Department, a service passport may be issued to a non-personal services contractor traveling abroad to carry out duties in support of and pursuant to a contract with the U.S. government, when exceptional circumstances make a service passport necessary to enable the individual to carry out his or her contractual duties.

    (c) Official passport. When authorized by the Department, an official passport may be issued to:

    (1) An officer or employee of the U.S. government traveling abroad to carry out official duties, and family members of such persons;

    (2) A U.S. government personal services contractor traveling abroad to carry out official duties on behalf of the U.S. government;

    (3) A non-personal services contractor traveling abroad to carry out duties in support of and pursuant to a contract with the U.S. government when the contractor is unable to carry out such duties using a regular or service passport; or

    (4) An official or employee of a state, local, tribal, or territorial government traveling abroad to carry out official duties in support of the U.S. government.

    (d) Diplomatic passport. A diplomatic passport is issued to a Foreign Service Officer or to a person having diplomatic status or comparable status because he or she is traveling abroad to carry out diplomatic duties on behalf of the U.S. government. When authorized by the Department, spouses and family members of such persons may be issued diplomatic passports. When authorized by the Department, a diplomatic passport may be issued to a U.S. government contractor if the contractor meets the eligibility requirements for a diplomatic passport and the diplomatic passport is necessary to complete his or her contractual duties in support of the U.S. government.

    (e) Passport card. A passport card is issued to a national of the United States on the same basis as a regular passport. It is valid only for departure from and entry to the United States through land and sea ports of entry between the United States and Mexico, Canada, the Caribbean and Bermuda. It is not a globally interoperable international travel document.

    4. Revise § 51.4 to read as follows:
    § 51.4 Validity of passports.

    (a) Signature of bearer. A passport book is valid only when signed by the bearer in the space designated for signature, or, if the bearer is unable to sign, signed by a person with legal authority to sign on his or her behalf. A passport card is valid without the signature of the bearer.

    (b) Period of validity of a regular passport and a passport card. (1) A regular passport or passport card issued to an applicant 16 years of age or older is valid for ten years from date of issue unless the Department limits the validity period to a shorter period.

    (2) A regular passport or passport card issued to an applicant under 16 years of age is valid for five years from date of issue unless the Department limits the validity period to a shorter period.

    (3) A regular passport for which payment of the fee has been excused is valid for a period of five years from the date issued unless limited by the Department to a shorter period.

    (c) Period of validity of a service passport. The period of validity of a service passport, unless limited by the Department to a shorter period, is five years from the date of issue, or so long as the bearer maintains the status pursuant to which the service passport is issued, whichever is shorter. A service passport which has not expired must be returned to the Department upon the termination of the bearer's status or at such other time as the Department may determine.

    (d) Period of validity of an official passport. The period of validity of an official passport, unless limited by the Department to a shorter period, is five years from the date of issue, or so long as the bearer maintains his or her official status, whichever is shorter. An official passport which has not expired must be returned to the Department upon the termination of the bearer's official status or at such other time as the Department may determine.

    (e) Period of validity of a diplomatic passport. The period of validity of a diplomatic passport, unless limited by the Department to a shorter period, is five years from the date of issue, or so long as the bearer maintains his or her diplomatic status, whichever is shorter. A diplomatic passport which has not expired must be returned to the Department upon the termination of the bearer's diplomatic status or at such other time as the Department may determine.

    (f) Limitation of validity. The validity period of any passport may be limited by the Department to less than the normal validity period. The bearer of a limited passport may apply for a new passport, using the proper application and submitting the limited passport, applicable fees, photographs, and additional documentation, if required, to support the issuance of a new passport.

    (g) Invalidity. A United States passport is invalid as soon as:

    (1) The Department has sent or personally delivered a written notice to the bearer stating that the passport has been revoked; or

    (2) The passport has been reported as lost or stolen to the Department, a U.S. passport agency or a diplomatic or consular post abroad and the Department has recorded the reported loss or theft; or

    (3) The passport is cancelled by the Department (physically, electronically, or otherwise) upon issuance of a new passport of the same type to the bearer; or

    (4) The Department has sent a written notice to the bearer that the passport has been invalidated because the Department has not received the applicable fees; or

    (5) The passport has been materially changed in physical appearance or composition, or contains a damaged, defective or otherwise nonfunctioning chip, or includes unauthorized changes, obliterations, entries or photographs, or has observable wear or tear that renders it unfit for use as a travel document, and the Department either takes possession of the passport or sends a written notice to the bearer); or

    (6) The bearer of a special issuance passport no longer maintains the status pursuant to which the passport was issued; or

    (7) The Department has sent a written notice to the bearer, directly or through the bearer's employing agency, stating that a special issuance passport has been cancelled by the Department.

    Dated: September 23, 2016. David T. Donahue, Acting Assistant Secretary, Bureau of Consular Affairs, Department of State.
    [FR Doc. 2016-23568 Filed 9-29-16; 8:45 am] BILLING CODE 4710-13-P
    DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration Federal Highway Administration 23 CFR Parts 1270 and 1275 [Docket No. NHTSA-2016-0099] RIN 2127-AL45 Regulatory Update of Transfer and Sanction Programs AGENCY:

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

    ACTION:

    Interim final rule; request for comments.

    SUMMARY:

    This action revises the Federal implementing regulations for the Section 154 (Open Container) and Section 164 (Repeat Intoxicated Driver) programs as a result of enactment of the Fixing America's Surface Transportation (FAST) Act. It incorporates the new compliance criteria for the Section 164 program and updates the regulations to reflect current practice. This document is being issued as an interim final rule to ensure that States receive instructions that are important to upcoming compliance determinations to be made on October 1, 2016. The agencies request comments on this rule. The agencies will publish a document responding to any comments received and, if appropriate, will amend provisions of the regulations.

    DATES:

    This interim final rule is effective on October 1, 2016. Comments concerning this interim final rule are due on November 30, 2016.

    ADDRESSES:

    You may submit comments using the number identified in the heading of this document by any of the following methods:

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

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

    Hand Delivery or Courier: West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m. Eastern Time, Monday through Friday, except Federal holidays.

    Fax: (202) 493-2251.

    Regardless of how you submit your comments, please mention the docket number of this document.

    You may also call the Docket at 202-366-9324.

    Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading of the Supplementary Information section of this document. Note that all comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

    Privacy Act: Please see the Privacy Act heading under Regulatory Analyses and Notices.

    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at the Docket Management Facility, M-30, U.S. Department of Transportation, West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC. The Docket Management Facility is open between 9 a.m. and 5 p.m., Eastern Time, Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    NHTSA: For program issues: Barbara Sauers, Director, Office of Grants Management and Operations, Telephone number: (202) 366-0144, Email: [email protected] For legal issues: Russell Krupen, Attorney Advisor, Office of Chief Counsel, Telephone number: (202) 366-1834, Email: [email protected]; Facsimile: (202) 366-3820.

    FHWA: For program issues: Erin Kenley, Team Leader, Safety Programs Implementation and Evaluation Team, Office of Safety, Telephone number: (202) 366-8556, Email: [email protected] For legal issues: William Winne, Attorney Advisor, Office of Chief Counsel, Telephone number: (202) 366-1397, Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Introduction II. Section 154: Open Container Laws III. Section 164: Repeat Intoxicated Driver Laws IV. Non-Compliance Penalties and Procedures V. Notice and Comment, Effective Date, and Request for Comments VI. Regulatory Analyses and Notices VII. Public Participation I. Introduction

    On December 4, 2015, the President signed into law the Fixing America's Surface Transportation Act (FAST Act), Public Law 114-94, the first authorization enacted in over ten years that provides long-term funding certainty for surface transportation. The FAST Act amended 23 U.S.C. 154 (Section 154) and 23 U.S.C. 164 (Section 164), which address the serious national problems of impaired driving by encouraging States to meet minimum standards for their open container laws and repeat intoxicated driver laws. The FAST Act built on prior amendments to those sections in the Moving Ahead for Progress in the 21st Century Act (MAP-21), Public Law 112-141, signed into law on July 6, 2012.

    The National Highway Traffic Safety Administration (NHTSA) and the Federal Highway Administration (FHWA) (collectively, “the agencies”) are issuing this interim final rule (IFR), with immediate effectiveness, to ensure that States receive instructions that are important to upcoming compliance determinations to be made on October 1, 2016, as the changes in the FAST Act are effective on that date. This IFR amends the Federal implementing regulations for Section 154 (23 CFR part 1270) and Section 164 (23 CFR part 1275) to reflect the changed requirements from the recent Federal legislation. At the same time, the agencies are taking this opportunity to update the regulations to improve clarity, codify longstanding interpretation of the statutes and current regulations, and streamline procedures for States.

    This preamble will first address the history of and modifications to the minimum compliance requirements of Section 154 and Section 164, respectively. It will then address the elements common to both programs, including the penalties for noncompliance, the limitations on use of funds associated with noncompliance, and the responsibilities of compliant and non-compliant States.

    II. Section 154: Open Container Laws A. Background

    The Transportation Equity Act for the 21st Century (TEA-21), Public Law 105-178, was signed into law on June 9, 1998. On July 22, 1998, the TEA-21 Restoration Act, Public Law 105-206 (a technical corrections bill), was enacted to restore provisions that were agreed to by the conferees to TEA-21, but were not included in the conference report. Section 1405 of the TEA-21 Restoration Act amended chapter 1 of title 23, United States Code (U.S.C.), by adding Section 154, which established a transfer program under which a percentage of a State's Federal-aid highway construction funds would be transferred to the State's apportionment under 23 U.S.C. 402 (Section 402) if the State failed to enact and enforce a conforming “open container” law. These funds could be used for alcohol-impaired driving countermeasures or the enforcement of driving while intoxicated laws, or States could elect to use all or a portion of the funds for hazard elimination activities under 23 U.S.C. 152.

    Under Section 154, to avoid the transfer of funds, a State must enact and enforce an open container law “that prohibits the possession of any open alcoholic beverage container, or the consumption of any alcoholic beverage, in the passenger area of any motor vehicle (including possession or consumption by the driver of the vehicle) located on a public highway, or the right-of-way of a public highway, in the State.” 23 U.S.C. 154(b)(1). All 50 States, the District of Columbia, and Puerto Rico are considered to be States for the purposes of this program.

    On October 6, 1998, the agencies published an interim final rule implementing the Section 154 program, 63 FR 53580 (Oct. 6, 1998), followed by a final rule published on August 24, 2000. 65 FR 51532 (Aug. 24, 2000). Since that time, the minimum requirements that a State's open container law must meet to comply with Section 154 have not changed. However, subsequent legislation amended the penalty provisions that apply to non-compliant States. Under current law, noncompliance results in the reservation of funds rather than an immediate transfer to Section 402; funds are reserved from different Federal-aid highway programs and in a different amount (based on a percentage defined in law); the transfer to Section 402 is dependent upon a State's election to use funds for alcohol impaired driving countermeasures; and funds may be used for highway safety improvement program activities eligible under 23 U.S.C. 148 rather than hazard elimination activities. The Federal implementing regulations were never updated to reflect these statutory changes governing procedures.

    This IFR updates the Federal implementing regulations to reflect these procedural changes. In addition, it makes changes to improve clarity, codify longstanding interpretations of the Federal statute and regulations, streamline procedures for States, and eliminate regulatory provisions that were not effectuated in practice for reasons discussed below. These changes are intended to ensure a uniform understanding among the States of the minimum requirements their open container laws must meet. Revisions to the procedures for demonstrating compliance, the penalties for noncompliance, and the responsibilities of compliant and non-compliant States are discussed later in the preamble as those aspects are common to the Section 154 program and the Section 164 program.

    B. Compliance Criteria for State Open Container Laws

    NHTSA is delegated the authority by the Secretary of Transportation to determine State compliance under Section 154 (49 CFR 1.95(f)). While Congress has not changed the minimum requirements that a State's open container law must meet to comply with Section 154 since the inception of the program, NHTSA's experience implementing the compliance criteria since the regulations were finalized in 2000 suggests the need to provide additional clarity to the States on particular aspects of the requirements. States are responsible for ensuring and maintaining their own compliance with these requirements. The agencies believe that the discussion in this preamble and the revisions to the regulations will allow States to better understand the program and attain and maintain compliance. These revisions are not intended to substantively amend the compliance requirements of the Section 154 program.

    1. Definitions (23 CFR 1270.3)

    The agencies are adding definitions for the terms “FHWA,” “NHTSA,” and “open container law” and eliminating the definition for “enact and enforce.” The added definitions are for terms used in the regulation, while the elimination of the definition of “enact and enforce” is simply because the term is plain and does not need a definition. The regulations continue to require a State to “enact and enforce” a compliant law.

    The agencies are amending the definition of “open alcoholic beverage container” to add the parenthetical phrase “(regardless of whether it has been closed or resealed.)” 23 CFR 1270.3(e).1 This is intended to make clear that “cork and carry” or “resealed wine container” laws exempting a recorked or resealed alcoholic beverage container from the State's open container laws are not allowed under the Federal law. Recorking or resealing does not negate the fact that the contents in the bottle have been partially removed, a direct concern under the Federal statute. Due to the preponderance of these laws in States, the agencies determined that this clarification is necessary. Recorked or resealed alcoholic beverages containers must be stored outside of the passenger area, such as in the trunk of a motor vehicle.

    1 Throughout this preamble, citations to the Section 154 and Section 164 implementing regulations refer to the version as amended by the IFR.

    2. Compliance Criteria (23 CFR 1270.4(a)-(c))

    Congress has made no changes to the substantive compliance criteria of Section 154 since the inception of the program. Therefore, the agencies are not making any substantive changes to these sections of the regulations. The six compliance criteria are discussed extensively in the interim final rule (63 FR 53580 [Oct. 6, 1998]) and final rule (65 FR 51532 [Aug. 24, 2000]) that first implemented the program. Those discussions provide background and explanations regarding the Federal minimum requirements.

    3. Exceptions (23 CFR 1270.4(d))

    The Federal implementing regulations require a State's open container law to apply to “the passenger area of any motor vehicle,” with passenger area meaning “the area designed to seat the driver and passengers while the motor vehicle is in operation and any area that is readily accessible to the driver or a passenger while in their seating positions, including the glove compartment.” 23 CFR 1270.3(g), 1270.4(b)(2). However, certain exceptions to this rule are permitted provided they comply with the requirements in 23 CFR 1270.4(d)(1).

    The Federal regulations have long permitted possession of an open alcoholic beverage container in a locked glove compartment. NHTSA has accepted as compliant a State provision permitting storage of an open container in a locked center console because a locked center console is functionally equivalent to a locked glove compartment. This IFR logically extends that exception to allow possession of an open alcoholic beverage container in any locked container (including a locked fixed console or a locked glove compartment). The agencies emphasize that this exception does not permit the possession in the passenger area of an open alcoholic beverage container in tamper-evident packaging. (See the earlier discussion about “cork and carry” and “resealed wine container” provisions.) While tamper-evident packaging may assist law enforcement officers in identifying whether consumption of the alcoholic beverage has occurred, it does not restrict access to the alcoholic beverage, which is the purpose of open container laws.

    This IFR also moves the location of the phrase “in a motor vehicle that is not equipped with a trunk” to remove any ambiguity that this is a prerequisite for allowing placement of an open alcoholic beverage container behind the last upright seat or in an area not normally occupied by the driver or a passenger. No substantive change is intended—the agencies have always interpreted and applied this provision in this manner.

    The Federal implementing regulations require a State's open container law to apply to all occupants of a motor vehicle. However, the Federal statute and implementing regulations permit exceptions allowing a passenger, but never a driver, to possess an open alcoholic beverage container or consume an alcoholic beverage in the passenger area of “a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, or in the living quarters of a house coach or house trailer.” 23 CFR 1270.4(d)(2). The agencies are making technical corrections to this provision that do not change its application.

    III. Section 164: Repeat Intoxicated Driver Laws A. Background

    Section 1406 of the TEA-21 Restoration Act amended chapter 1 of title 23, U.S.C., by adding Section 164, which established a transfer program under which a percentage of a State's Federal-aid highway construction funds would be transferred to the State's apportionment under Section 402 if the State failed to enact and enforce a conforming “repeat intoxicated driver” law. As with Section 154, transfer funds could be used for alcohol-impaired driving countermeasures or the enforcement of driving while intoxicated laws, or States could elect to use all or a portion of the funds for hazard elimination activities under 23 U.S.C. 152.

    Under Section 164, to avoid the transfer of funds, a State must enact and enforce a repeat intoxicated driver law that establishes, at minimum, certain specified penalties for second and subsequent convictions of driving while intoxicated or driving under the influence. As originally enacted, Section 164 required that States impose the following minimum penalties: A one-year driver's license suspension; the impoundment or immobilization of, or the installation of an ignition interlock system on, the repeat intoxicated driver's motor vehicles; an assessment of the repeat intoxicated driver's degree of alcohol abuse, and treatment as appropriate; and the sentencing of the repeat intoxicated driver to a minimum number of days of imprisonment or community service. All 50 States, the District of Columbia, and Puerto Rico are considered to be States for the purposes of this program.

    On October 19, 1998, the agencies published an interim final rule that implemented the Section 164 program, 63 FR 55796 (Oct. 19, 1998), followed by a final rule published on October 4, 2000. 65 FR 59112 (Oct. 4, 2000). The SAFETEA-LU Technical Corrections Act of 2008, Public Law 110-244 (enacted June 6, 2008), amended some of the minimum penalties States must impose on repeat offenders, and both MAP-21 and the FAST Act further amended these minimum penalties. These Acts also updated, in the same ways as Section 154, the penalty provisions that apply to States that are not compliant with the program. Despite these significant statutory changes over the past eight years, the Federal implementing regulations have not been updated since 2000.

    This IFR updates the minimum compliance criteria based on these legislative changes, as well as to improve clarity, codify longstanding interpretations, streamline procedures for States, and eliminate regulatory provisions that were not effectuated in practice for reasons discussed below. As with Section 154, these changes are intended to ensure a uniform understanding among the States of the minimum requirements their repeat intoxicated driver laws must meet. Revisions to the procedures for demonstrating compliance, the penalties for noncompliance, and the responsibilities of compliant and non-compliant States are discussed later in the preamble as those apply also to the Section 154 program.

    B. Minimum Repeat Intoxicated Driver Law Requirements

    Unlike the Section 154 program, Congress has made substantive amendments to the requirements that a State's repeat intoxicated driver law must meet to comply with Section 164. Many of the revisions described in this section codify those substantive statutory changes, as the regulations have not been updated since 2000. In other cases, the agencies are simply improving the clarity of the regulations to reflect longstanding application of the Federal statute since 2000.

    1. Definitions (23 CFR 1275.3)

    The agencies are adding definitions for “FHWA” and “NHTSA” and eliminating the definition for “enact and enforce,” consistent with the approach for 23 CFR 1270.3. The agencies are eliminating the definitions for “driver's motor vehicle” and “impoundment or immobilization,” as the compliance criterion to which these applied was repealed by the FAST Act. The agencies are eliminating the definition for “license suspension,” as the compliance criterion to which it applied has been reworded, rendering the definition superfluous. The agencies are adding a definition for “24-7 sobriety program” due to FAST Act revisions to the general compliance criteria. Because the definition of the term in the FAST Act cross-references 23 U.S.C. 405(d)(7)(A), the agencies have similarly tied the definition here to the meaning given to it in NHTSA's Section 405 implementing regulations (see 23 CFR 1300.23(b)). 23 CFR 1270.3(a). This necessitates adding a reference to a “combination of laws or programs” to the definition of “repeat intoxicated driver law” to accommodate these 24-7 sobriety programs. Finally, the agencies are adding a definition for “mandatory sentence.” As used in combination with “imprisonment,” the definition is intended to ensure that repeat offenders are in fact detained for the minimum periods specified.

    Although the IFR makes no change to the definition of “repeat intoxicated driver,” the agencies emphasize that a State may not expunge an offender's prior conviction in order to exclude it from the five-year lookback period. Any mechanism (including expungement) that causes a State to exclude from consideration prior convictions of driving while intoxicated or driving under the influence, when such convictions occurred within the prior five years, generally does not comply with Section 164.

    2. Compliance Criteria (23 CFR 1275.4(a))

    The substantive compliance criteria of Section 164 have been significantly amended since their inception. This IFR updates the compliance criteria to reflect the current law, as most recently amended by the FAST Act. In addition, the agencies are providing clarifications as appropriate.

    a. License Sanction (23 CFR 1275.4(a)(1))

    Section 164, as created by the TEA-21 Restoration Act, required all repeat offenders to receive a minimum one-year hard license suspension or revocation. Under the Federal implementing regulations, during the one-year term, the offender could not be eligible for any driving privileges, such as a restricted or hardship license. Because the Federal implementing regulations have not been updated since 2000, this language remained in the Code of Federal Regulations. The SAFETEA-LU Technical Corrections Act of 2008 and MAP-21 made further changes that were effectuated by the agencies, but that were never written into the regulations.

    The FAST Act completely rewrote the license sanction criterion in 23 U.S.C. 164(a)(5)(A) to loosen the requirements and provide for additional compliance options for States. This IFR codifies the revised criterion. Under today's IFR, all repeat offenders must receive one or a combination of three license sanctions for a period of not less than one year (365 days). States may therefore “mix-and-match” these sanctions, provided that, in combination, they last for the full one year period.

    The first license sanction is a suspension of all driving privileges. During that period, the repeat offender is not permitted to operate any motor vehicle under any circumstances. The second license sanction is a restriction on driving privileges that limits the individual to operating only motor vehicles with an ignition interlock device installed. Section 164 and the implementing regulations permit certain limited exceptions to this license sanction, discussed later in this preamble. The third license sanction is that the repeat offender may only operate a motor vehicle provided the individual is participating in, and complying with, a 24-7 sobriety program. For a State's law or 24-7 sobriety program to comply with this requirement, it must make clear that any participant who is kicked out of the program must be subject to either a hard license suspension or an ignition interlock restriction, as provided under the other two license sanctions, for the remainder of the one year sanction period.

    b. Vehicle Sanction (Repealed)

    The TEA-21 Restoration Act required all repeat offenders to “be subject to the impoundment or immobilization of each of the individual's motor vehicles or the installation of an ignition interlock system on each of the motor vehicles.” The Federal implementing regulations further required impoundment or immobilization to occur during the one-year license suspension, while installation of an ignition interlock device was required to occur at the conclusion of the one-year license suspension. The FAST Act repealed this vehicle sanction. With the vast majority of States moving to ignition interlocks as a license sanction, the vehicle sanction requirement was largely redundant. This IFR removes these requirements from 23 CFR 1275.4.

    c. Assessment and Treatment (23 CFR 1275.4(a)(2))

    Under Section 164, the State law must require that all repeat intoxicated drivers undergo an assessment of their degree of alcohol abuse, and it must authorize the imposition of treatment as appropriate. An assessment is required of all repeat offenders because it allows for a determination not only of whether an offender should undergo treatment, but also of what type and level of treatment is appropriate for that offender. While treatment is not required for all repeat offenders, the State must authorize the imposition of treatment as appropriate. Congress has not changed this criterion since its inception, and the agencies are making no changes in this IFR.

    d. Minimum Sentence (23 CFR 1275.4(a)(3))

    Since the beginning of the program, Section 164 has required that each State have a law that imposes a mandatory minimum sentence on all repeat intoxicated drivers. For a second offense, the law must provide for a mandatory sentence of not less than 5 days of imprisonment or 30 days of community service. For a third or subsequent offense, the law must provide for a mandatory sentence of not less than 10 days of imprisonment or 60 days of community service. The terms “mandatory sentence” and “imprisonment” are defined in 23 CFR 1275.3. The FAST Act retains these minimum sentence provisions, but allows States the option to certify as to their “general practice” for incarceration in lieu of having a compliant mandatory minimum sentence. The new certification option is addressed in the next section regarding exceptions.

    In this IFR, the agencies are clarifying the number of hours for the various sentences identified above that are considered equivalent to each “day.” Many States provide for sentencing in terms of hours rather than days. The agencies recognize that imprisonment and community service function differently. While imprisonment is generally an extended period of detainment that lasts through waking and sleeping hours, community service is a form of labor that occurs while the detainee is awake. A “day” for purposes of each of these penalties is therefore not equivalent. NHTSA's longstanding interpretation has been that one “day” of imprisonment equals 24 hours, and one “day” of community service equals 8 hours (a work day). The agencies have added corresponding hour equivalents to the minimum sentence criterion.

    3. Exceptions (23 CFR 1275.4(b), 1275.5) a. Special Exceptions (23 CFR 1275.4(b))

    One of the three sanctions under the license sanction criterion described above is restriction of the repeat offender's driving privileges to the operation of only motor vehicles with an ignition interlock device installed. However, the FAST Act allows two exceptions to this restriction, which the agencies are adopting in this IFR verbatim. (Prior to enactment of the FAST Act, neither was allowed under the Section 164 program.) No other exceptions to a State's ignition interlock law are permitted.

    First, the FAST Act allows a repeat offender subject to an ignition interlock restriction to operate an employer's motor vehicle in the course and scope of employment without an ignition interlock device installed, provided the business entity that owns the vehicle is not owned or controlled by the individual. A State's exception must explicitly exclude business entities owned or controlled by the repeat offender or it will not comply with the license sanction criterion. An exclusion for “self-employment,” for example, does not cover all business entities potentially owned or controlled by a repeat offender, and would not allow a State's exception to comply with the license sanction criterion. Second, a State may except from its ignition interlock law a repeat offender that is certified by a medical doctor as being unable to provide a deep lung breath sample for analysis by an ignition interlock device.

    b. “General Practice” Certifications (23 CFR 1275.5)

    The FAST Act amends the minimum sentence criterion to provide an alternative compliance option. In lieu of enacting and enforcing a law that complies with the minimum sentence criterion, a State may certify to its “general practice” of incarceration. According to the FAST Act, the State must certify for a second offender that its “general practice is that such an individual will be incarcerated” and for a third or subsequent offender that its “general practice is that such an individual will receive 10 days of incarceration.” 23 U.S.C. 164(a)(5)(C)(i)-(ii). This IFR establishes the process for a State to submit a “general practice” certification as an alternative means of satisfying the minimum sentence criterion.

    The IFR sets forth separate certifications for second offender incarceration and for third and subsequent offender incarceration. This will allow maximum flexibility to States, because it allows a State whose laws are partly in compliance to satisfy the minimum sentence criterion through a combination of statute and certification.

    To meet the statutory standard of “general practice,” the agencies have elected to require a State to certify that 75 percent of repeat offenders are subject to mandatory incarceration. The agencies believe this percentage is a reasonable interpretation of what would constitute “general practice” in a State. Consistent with the FAST Act requirements, the certification for a second offender does not contain a minimum incarceration period, while that for third and subsequent offenders specifies 10 days.

    The agencies elected not to base “general practice” on a State's average incarceration period for repeat offenders. That approach would allow a State to meet the standard for second offenders if a single offender is sentenced to any period of incarceration. For third and subsequent offenders, lengthy prison sentences could skew the average even if the vast majority of offenders received sentences well below 10 days. The agencies do not believe such an approach falls within the reasonable meaning of “general practice.”

    Each certification is required to be based on data from the full calendar year immediately preceding the date of certification. In other words, if the State is certifying for fiscal year 2018 (which begins on October 1, 2017), the State's “general practice” certification must be based on data from the entire period of January 1, 2016 through December 31, 2016. The certification must be signed by the Governor's Representative for Highway Safety and must be based on personal knowledge and other appropriate inquiry.

    Because the State's “general practice” may change over time, the agencies are requiring States electing this compliance option to provide a new certification annually. Although certifications are due by October 1 each year, States are encouraged to submit their certification by August 15 to avoid any delay in the release of funds on October 1 of that calendar year.

    IV. Non-Compliance Penalties and Procedures

    This section describes the penalties affecting States that do not comply with one or both of the Section 154 and Section 164 programs. In general, these changes merely update the regulations to reflect amendments made by Federal statutes, such as MAP-21. The agencies are also streamlining some of the procedures that apply to States.

    A. Reservation of Funds for Non-Compliance (23 CFR 1270.6 and 1275.6)

    States that fail to enact or enforce compliant open container or repeat intoxicated driver laws by October 1 of each fiscal year will have an amount equal to 2.5 percent of Federal-aid funds apportioned under 23 U.S.C. 104(b)(1) and 23 U.S.C. 104(b)(2) for the National Highway Performance Program (NHPP) and the Surface Transportation Block Grant Program (STBG) reserved by FHWA. The penalties are separate and distinct; a 2.5 percent penalty applies separately for each program where non-compliance occurs. The IFR eliminates as obsolete the penalty provisions that applied to fiscal years 2001 and 2002. In addition, it updates the procedures to reflect the change to a reservation program (rather than immediate transfer to a State's Section 402 apportionment), the change in the penalty amount to 2.5 percent of Federal-aid funds (rather than 3 percent), and the change in the funds from which the penalty is reserved to those apportioned under 23 U.S.C. 104(b)(1) and (b)(2) (rather than 23 U.S.C. 104(b)(1), (b)(3), and (b)(4)), which all resulted from MAP-21.

    The initial reservation of Federal-aid funds by FHWA for noncompliant States will be on a proportional basis from each of the apportionments under Sections 104(b)(1) and (b)(2). Each fiscal year, the State's Department of Transportation must inform FHWA, through the appropriate Division Administrator, within 30 days if it wishes to change the derivation of the total penalty amounts from the NHPP and STBG apportionments from the default proportional amounts. Prior to this IFR, States were required to submit this request by October 30. The change in the IFR ensures that States always receive 30 days to process this request in the event issuance of the notice of apportionments is delayed.

    B. Use of Reserved Funds (23 CFR 1270.7 and 1275.7)

    The agencies have reorganized 23 CFR 1270.7 and 1275.7 to improve clarity and better align them with the order of procedures for States. Not later than 60 days after the penalty funds are reserved, the Governor's Representative for Highway Safety and the Chief Executive Officer of the State's Department of Transportation must jointly identify, in writing, to the appropriate NHTSA Regional Administrator and FHWA Division Administrator how the penalty funds will be distributed for use among alcohol-impaired driving programs and highway safety improvement program (HSIP) eligible activities under 23 U.S.C. 148. The primary change in the IFR is to reflect the change in available uses from hazard elimination to HSIP eligible activities, which resulted from Federal legislation.

    The penalty funds will continue to be reserved until the State provides this distribution request. As soon as practicable after its receipt by the agencies, the funds will either be transferred to the State's Section 402 apportionment for alcohol-impaired driving programs or released to the State Department of Transportation for HSIP eligible activities, pursuant to the changes in MAP-21. The Federal statutes do not authorize additional transfers between the Section 402 and HSIP programs. As a result, the IFR adds that once penalty funds have been transferred or released for the fiscal year, States are not able to revise their request.

    The allowable uses for funds (specifically, for alcohol-impaired driving programs and HSIP eligible activities) are described in the implementing regulations and updated only to reflect the switch from hazard elimination to HSIP, pursuant to Federal legislation. Under both programs, the Federal share of the cost of any project carried out with penalty funds remains 100 percent.

    Section 154 and 164 penalty funds are transferred or released from the State's apportionment of contract authority under 23 U.S.C. 104(b)(1) and 23 U.S.C. 104(b)(2). The contract authority is transferred or released with accompanying obligation authority, which is the maximum amount the State can obligate to eligible projects. If the State elects to transfer funds to its Section 402 apportionment for alcohol-impaired driving programs, the obligation limitation is provided based on a ratio specified in 23 CFR 1270.7 and 1275.7, which comes directly from 23 U.S.C. 154(c)(6) and 23 U.S.C. 164(b)(6). The IFR makes technical corrections and amendments to improve clarity in these provisions of the Federal implementing regulations, but they do not result in any change in how the ratio is calculated.

    C. Procedures Affecting States in Noncompliance (23 CFR 1270.8 and 1275.8)

    Under the original Federal implementing regulations, the agencies intended for States to be notified of their compliance status in FHWA's advance notice of apportionment, normally issued ninety days prior to final apportionment. Noncompliant States were then granted 30 days to submit documentation showing why they were in compliance. The agencies would then issue a final determination as part of the final notification of apportionments, which normally occurs on October 1 of each year. While the agencies have strived to notify States of pending changes in their compliance status in the advance notice of apportionment whenever possible, the Federal statute requires formal compliance determinations to be based on the State's law enacted and enforced on October 1 of each fiscal year. As a result, State compliance status may change up to that date, making this system unworkable in many cases. The IFR revises 23 CFR 1270.8 and 1275.8 to better reflect the actual practice the agencies have undertaken to give States full opportunity to present additional documentation (with some minor changes to streamline the process for States).

    Each State determined to be noncompliant with 23 U.S.C. 154 or 23 U.S.C. 164 receives notice of its compliance status and the funds being reserved from apportionment as part of the final certification of apportionments required under 23 U.S.C. 104(e), which normally occurs on October 1 of each fiscal year. All States will be afforded 30 days from the date the final notice of apportionments is issued to submit additional documentation showing why they are in compliance. For the Section 164 program, this documentation may include a “general practice” certification. Previously, only newly noncompliant States were afforded 30 days to submit additional documentation demonstrating compliance.

    While the agencies consider any additional documentation provided by the State, the reservation will remain in place on the State's affected funds. However, the State must still provide the requests regarding the derivation and distribution of funds referenced in Sections A and B (within 30 and 60 days, respectively) while the documentation is reviewed to expedite the distribution of funds. If the agencies affirm the noncompliance determination, the State will be notified of the decision and the affected funds will be processed in accordance with the requests provided by the State. If the agencies reverse the noncompliance determination, the funds will be released from reservation and restored to the State's NHPP and STBG accounts. These procedures are intended to preserve the maximum possible flexibility for States, while ensuring that the agencies meet their statutory obligations.

    D. States' Responsibilities Regarding Compliance (23 CFR 1270.9 and 1275.9)

    Under the original Federal implementing regulations, if a State enacted a newly compliant law, the State was required to submit to the NHTSA Regional Office a copy of the law along with a certification meeting the requirements of the applicable Federal regulation (23 CFR 1270.5 or 1275.5, prior to amendment by this IFR). States were required to promptly submit an amendment or supplement to their certifications if their law changed or they ceased to enforce their law.

    The agencies are eliminating this certification requirement in this IFR, thereby reducing the paperwork burden on the States. In practice, few States submitted certifications, and the agencies found them to be of limited value in enforcement. Instead, this IFR adds a new section for each of the programs (23 CFR 1270.9 and 1275.9) related to States' responsibilities regarding compliance. First, these sections make clear that it is the State's sole responsibility to ensure compliance with the Section 154 and 164 programs. While NHTSA conducts an annual review of State laws to assess whether legislation has affected their compliance status, this does not occur until late in the fiscal year, often after State legislative sessions have ended. NHTSA cannot and does not actively monitor all pending legislation in all States. Instead, each State Highway Safety Office and State Department of Transportation should actively monitor their legislatures for potential amendments to their open container and repeat intoxicated driver laws.

    Second, the agencies have added a provision indicating that States must promptly notify the appropriate NHTSA Regional Administrator in writing of any change or change in enforcement to the State's open container or repeat intoxicated driver law, identifying the specific change(s). This replaces the requirement to submit a supplement or amendment to the State's certification. To the extent appropriate, NHTSA will conduct a preliminary review of the State's amended law and identify to the State any potential compliance issues resulting from the change. Absent early notification from the State, NHTSA may not identify a potential compliance issue until later in the fiscal year, often after the State's legislative session has ended.

    V. Notice and Comment, Effective Date, and Request for Comments

    The Administrative Procedure Act authorizes agencies to dispense with certain procedures for rules when they find “good cause” to do so. The agencies must ensure that States receive instructions that are important to upcoming compliance determinations to be made on October 1, 2016, as the changes in the FAST Act are effective on that date. In light of the short time frame for implementing the FAST Act, the agencies find good cause to dispense with the notice and comment requirements and the 30-day delayed effective date requirement.

    Under Section 553(b)(B), the requirements of notice and comment do not apply when the agency, for good cause, finds that those procedures are “impracticable, unnecessary, or contrary to public interest.” Because of the short time frame for implementing the FAST Act, the agencies find it impracticable to implement the new compliance criteria with notice and comment for FY 2017. However, the agencies invite public comment on all aspects of this IFR. The agencies will consider and address comments in a final rule, which the agencies commit to publishing during the first quarter of calendar year 2017, and which will be effective beginning with FY 2018.

    Under Section 553(d), the agencies may make a rule effective immediately, avoiding the 30-day delayed effective date requirement for good cause. We have determined that it is in the public interest for this IFR to have an immediate effective date. The agencies are expediting this rulemaking to provide instructions that are important to upcoming compliance determinations to be made on October 1, 2016, such as those related to the new “general practice” certifications. States also need clarification for the processes related to noncompliance.

    For these reasons, the agencies are issuing this rulemaking as an interim final rule that will be effective immediately. As an interim final rule, this regulation is fully in effect and binding upon its effective date. No further regulatory action by the agencies is necessary to make this rule effective. However, in order to benefit from comments that interested parties and the public may have, the agencies are requesting that comments be submitted to the docket for this notice.

    Comments received in response to this notice will be considered by the agencies. The agencies will then issue a final rule, including any appropriate amendments based on those comments. The notice for that final rule will respond to substantive comments received.

    VI. Regulatory Analyses and Notices A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 13563, and DOT Regulatory Policies and Procedures

    The agencies have 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 under Executive Order 12866 or Executive Order 13563. This rule will only affect the compliance status of a very small handful of States and will therefore affect far less than $100 million annually. Whether a State chooses to enact a compliant law or make a certification is dependent on many variables, and cannot be linked with specificity to the issuance of this rule. States choose whether to enact and enforce compliant laws, thereby complying with the programs. If a State chooses not to enact and enforce a conforming law, its funds are conditioned, but not withheld. Accordingly, the total amount of funds provided to each State does not change. The costs to States associated with this rule are minimal (e.g., passing and enforcing alcohol impaired driving laws) and are expected to be offset by resulting highway safety benefits. Therefore, this rulemaking has been determined to be not “significant” under the Department of Transportation's regulatory policies and procedures and the policies of the Office of Management and Budget.

    B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C. 601 et seq.) requires agencies to evaluate the potential effects of their proposed and final rules on small businesses, small organizations, and small governmental jurisdictions. Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the proposed rulemaking is not expected to have a significant economic impact on a substantial number of small entities. The Small Business Regulatory Enforcement Fairness Act (SBREFA) amended the RFA to require Federal agencies to provide a statement of the factual basis for certifying that an action would not have a significant economic impact on a substantial number of small entities.

    This IFR is a rulemaking that will update the Section 154 and Section 164 regulations based on recent Federal legislation. The requirements of these programs only affect State governments, which are not considered to be small entities as that term is defined by the RFA. Therefore, we certify that this action will not have a significant impact on a substantial number of small entities and find that the preparation of a Regulatory Flexibility Analysis is unnecessary.

    C. Executive Order 13132 (Federalism)

    Executive Order 13132 on “Federalism” requires the agencies to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” 64 FR 43255 (August 10, 1999). “Policies that have federalism implications” are defined in the Executive Order to include regulations that 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.” Under Executive Order 13132, an agency may not issue a regulation with Federalism implications that imposes substantial direct compliance costs and that is not required by statute unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments or the agency consults with State and local governments in the process of developing the proposed regulation. An agency also may not issue a regulation with Federalism implications that preempts a State law without consulting with State and local officials.

    The agencies have analyzed this rulemaking action in accordance with the principles and criteria set forth in Executive Order 13132, and have determined that this IFR would not have sufficient Federalism implications as defined in the order to warrant formal consultation with State and local officials or the preparation of a federalism summary impact statement. However, the agencies continue to engage with State representatives regarding general implementation of the FAST Act, including these programs, and expects to continue these informal dialogues.

    D. Executive Order 12988 (Civil Justice Reform)

    Pursuant to Executive Order 12988 (61 FR 4729 (February 7, 1996)), “Civil Justice Reform,” the agencies have considered whether this rule would have any retroactive effect. We conclude that it would not have any retroactive or preemptive effect, and judicial review of it may be obtained pursuant to 5 U.S.C. 702. That section does not require that a petition for reconsideration be filed prior to seeking judicial review. This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

    E. 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 rulemaking would not establish any new information collection requirements.

    F. Unfunded Mandates Reform Act

    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 expenditures by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted annually for inflation with base year of 1995). This IFR would not meet the definition of a Federal mandate because the resulting annual State expenditures to comply with the programs would not exceed the minimum threshold.

    G. National Environmental Policy Act

    NHTSA has considered the impacts of this rulemaking action for the purposes of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347). The agency has determined that this IFR would not have a significant impact on the quality of the human environment. FHWA has analyzed this action for the purposes of NEPA and has determined that it would not have any effect on the quality of the environment and meets the criteria for the categorical exclusion at 23 CFR 771.117(c)(20).

    H. Executive Order 13211

    Executive Order 13211 (66 FR 28355, May 18, 2001) applies to any rulemaking that: (1) Is determined to be economically significant as defined under Executive Order 12866, and is likely to have a significantly adverse effect on the supply of, distribution of, 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. This rulemaking is not likely to have a significantly adverse effect on the supply of, distribution of, or use of energy. This rulemaking has not been designated as a significant energy action. Accordingly, this rulemaking is not subject to Executive Order 13211.

    I. Executive Order 13175 (Consultation and Coordination With Indian Tribes)

    The agencies have analyzed this IFR under Executive Order 13175, and have determined that today's action would not have a substantial direct effect on one or more Indian tribes, would not impose substantial direct compliance costs on Indian tribal governments, and would not preempt tribal law. Therefore, a tribal summary impact statement is not required.

    J. Plain Language

    Executive Order 12866 and the President's memorandum of June 1, 1998, require each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

    • Have we organized the material to suit the public's needs?

    • Are the requirements in the rule clearly stated?

    • Does the rule contain technical language or jargon that isn't clear?

    • Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?

    • Would more (but shorter) sections be better?

    • Could we improve clarity by adding tables, lists, or diagrams?

    • What else could we do to make the rule easier to understand?

    If you have any responses to these questions, please include them in your comments on this IFR. K. Regulatory 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 or about 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.

    L. Privacy Act

    Please note that anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19477) or you may visit http://dms.dot.gov.

    VII. Public Participation How do I prepare and submit comments?

    Your comments must be written and in English. To ensure that your comments are correctly filed in the Docket, please include the docket number of this document in your comments.

    Your comments must not be more than 15 pages long. (49 CFR 553.21). We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.

    Comments may also be submitted to the docket electronically by logging onto the Docket Management System Web site at http://www.regulations.gov. Follow the online instructions for submitting comments.

    Please note that pursuant to the Data Quality Act, in order for substantive data to be relied upon and used by the agencies, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at http://www.whitehouse.gov/omb/fedreg/reproducible.html.

    How can I be sure that my comments were received?

    If you wish Docket Management to notify you upon its receipt of your comments, enclose a self-addressed, stamped postcard in the envelope containing your comments. Upon receiving your comments, Docket Management will return the postcard by mail.

    How do I submit confidential business information?

    If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given above under FOR FURTHER INFORMATION CONTACT. In addition, you should submit a copy, from which you have deleted the claimed confidential business information, to the docket at the address given above under ADDRESSES. When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in our confidential business information regulation. (49 CFR part 512.)

    Will the agencies consider late comments?

    We will consider all comments received before the close of business on the comment closing date indicated above under DATES. To the extent possible, we will also consider comments that the docket receives after that date. If the docket receives a comment too late for us to consider in developing a final rule (assuming that one is issued), we will consider that comment as an informal suggestion for future rulemaking action.

    How can I read the comments submitted by other people?

    You may read the comments received by the docket at the address given above under ADDRESSES. The hours of the docket are indicated above in the same location. You may also see the comments on the Internet. To read the comments on the Internet, go to http://www.regulations.gov. Follow the online instructions for accessing the dockets.

    Please note that even after the comment closing date, we will continue to file relevant information in the docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the Docket for new material. You can arrange with the docket to be notified when others file comments in the docket. See http://www.regulations.gov for more information.

    Authority:

    23 U.S.C. 154 and 164; delegation of authority at 49 CFR 1.85 and 1.95.

    List of Subjects in 23 CFR Parts 1270 and 1275

    Reservation and transfer programs—Transportation, Highway safety, Intergovernmental relations, Alcohol abuse.

    For the reasons discussed in the preamble, under the authority of 23 U.S.C. 154 and 164, the National Highway Traffic Safety Administration and the Federal Highway Administration amend 23 CFR Chapter II as follows:

    1. Revise part 1270 to read as follows: PART 1270—OPEN CONTAINER LAWS Sec. 1270.1 Scope. 1270.2 Purpose. 1270.3 Definitions. 1270.4 Compliance criteria. 1270.5 [Reserved]. 1270.6 Reservation of funds. 1270.7 Use of reserved funds. 1270.8 Procedures affecting States in noncompliance. 1270.9 States' responsibilities regarding compliance. Authority:

    23 U.S.C. 154; delegation of authority at 49 CFR 1.85 and 1.95.

    § 1270.1 Scope.

    This part prescribes the requirements necessary to implement Section 154 of Title 23 of the United States Code which encourages States to enact and enforce open container laws.

    § 1270.2 Purpose.

    The purpose of this part is to specify the steps that States must take to avoid the reservation and transfer of Federal-aid highway funds for noncompliance with 23 U.S.C. 154.

    § 1270.3 Definitions.

    As used in this part:

    (a) Alcoholic beverage means:

    (1) Beer, ale, porter, stout, and other similar fermented beverages (including sake or similar products) of any name or description containing one-half of 1 percent or more of alcohol by volume, brewed or produced from malt, wholly or in part, or from any substitute therefor;

    (2) Wine of not less than one-half of 1 per centum of alcohol by volume; or

    (3) Distilled spirits which is that substance known as ethyl alcohol, ethanol, or spirits of wine in any form (including all dilutions and mixtures thereof from whatever source or by whatever process produced).

    (b) FHWA means the Federal Highway Administration.

    (c) Motor vehicle means a vehicle driven or drawn by mechanical power and manufactured primarily for use on public highways, but does not include a vehicle operated solely on a rail or rails.

    (d) NHTSA means the National Highway Traffic Safety Administration.

    (e) Open alcoholic beverage container means any bottle, can, or other receptacle that:

    (1) Contains any amount of alcoholic beverage; and

    (2) Is open or has a broken seal or the contents of which are partially removed (regardless of whether it has been closed or resealed).

    (f) Open container law means a State law or combination of laws that meets the minimum requirements specified in § 1270.4.

    (g) Passenger area means the area designed to seat the driver and passengers while the motor vehicle is in operation and any area that is readily accessible to the driver or a passenger while in their seating positions, including the glove compartment.

    (h) Public highway or right-of-way of a public highway means the width between and immediately adjacent to the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel; inclusion of the roadway and shoulders is sufficient.

    (i) State means any of the 50 States, the District of Columbia, or the Commonwealth of Puerto Rico.

    § 1270.4 Compliance criteria.

    (a) To avoid the reservation of funds specified in § 1270.6, a State must enact and enforce an open container law that prohibits the possession of any open alcoholic beverage container, and the consumption of any alcoholic beverage, in the passenger area of any motor vehicle (including possession or consumption by the driver of the vehicle) located on a public highway, or the right-of-way of a public highway, in the State.

    (b) The law must apply to:

    (1) The possession of any open alcoholic beverage container and the consumption of any alcoholic beverage;

    (2) The passenger area of any motor vehicle;

    (3) All alcoholic beverages;

    (4) All occupants of a motor vehicle; and

    (5) All motor vehicles located on a public highway or the right-of-way of a public highway.

    (c) The law must provide for primary enforcement.

    (d) Exceptions. (1) If a State has in effect a law that makes unlawful the possession of any open alcoholic beverage container and the consumption of any alcoholic beverage in the passenger area of any motor vehicle, but permits the possession of an open alcoholic beverage container in a locked container (such as a locked glove compartment), or, in a motor vehicle that is not equipped with a trunk, either behind the last upright seat or in an area not normally occupied by the driver or a passenger, the State will be deemed to have in effect a law that applies to the passenger area of any vehicle, as provided in paragraph (b)(2) of this section.

    (2) If a State has in effect a law that makes unlawful the possession of any open alcoholic beverage container and the consumption of any alcoholic beverage by the driver (but not by a passenger) in the passenger area of a motor vehicle designed, maintained, or used primarily for the transportation of persons for compensation, or in the living quarters of a house coach or house trailer, the State shall be deemed to have in effect a law that applies to all occupants of a motor vehicle with respect to such motor vehicles, as provided in paragraph (b)(4) of this section.

    § 1270.5 [Reserved].
    § 1270.6 Reservation of funds.

    (a) On October 1 of each fiscal year, if a State has not enacted or is not enforcing a law that complies with § 1270.4, FHWA will reserve an amount equal to 2.5 percent of the funds apportioned to the State for that fiscal year under each of 23 U.S.C. 104(b)(1) and (b)(2).

    (b) The reservation of funds will be made based on proportionate amounts from each of the apportionments under 23 U.S.C. 104(b)(1) and (b)(2). The State's Department of Transportation will have 30 days from the date the funds are reserved under this section to notify FHWA, through the appropriate Division Administrator, if it would like to change the distribution of the amounts reserved between 23 U.S.C. 104(b)(1) and (b)(2).

    § 1270.7 Use of reserved funds.

    (a) Not later than 60 days after the funds are reserved under § 1270.6, the Governor's Representative for Highway Safety and the Chief Executive Officer of the State's Department of Transportation for each State must jointly identify, in writing to the appropriate NHTSA Regional Administrator and FHWA Division Administrator, how the funds will be programmed between alcohol-impaired driving programs under paragraph (c) of this section and highway safety improvement program activities under paragraph (d) of this section. Funds will remain reserved until this notification is provided by the State.

    (b) As soon as practicable after NHTSA and FHWA receive the notification described in paragraph (a) of this section, the Secretary will:

    (1) Transfer the reserved funds identified by the State for alcohol-impaired driving programs under paragraph (c) of this section to the apportionment of the State under 23 U.S.C. 402; and

    (2) Release the reserved funds identified by the State for highway safety improvement program activities under paragraph (d) of this section to the State Department of Transportation.

    (c) Any funds transferred under paragraph (b)(1) of this section shall be—

    (1) Used for approved projects for alcohol-impaired driving countermeasures; or

    (2) Directed to State and local law enforcement agencies for enforcement of laws prohibiting driving while intoxicated or driving under the influence and other related laws (including regulations), including the purchase of equipment, the training of officers, and the use of additional personnel for specific alcohol-impaired driving countermeasures, dedicated to enforcement of the laws (including regulations).

    (d) Any funds released under paragraph (b)(2) of this section shall be used for highway safety improvement program activities eligible under 23 U.S.C. 148.

    (e) Once the funds have been transferred or released under paragraph (b) of this section, the State may not revise the notification described in paragraph (a) of this section identifying how the funds will be programmed between alcohol-impaired driving programs and highway safety improvement program activities.

    (f) The Federal share of the cost of any project carried out with the funds transferred or released under paragraph (b) of this section is 100 percent.

    (g)(1) If any funds are transferred under paragraph (b)(1) of this section to the apportionment of a State under Section 402 for a fiscal year, the amount of obligation authority determined under paragraph (g)(2) of this section shall be transferred for carrying out projects described in paragraph (c) of this section.

    (2) The obligation authority referred to in paragraph (g)(1) of this section shall be transferred from the obligation authority distributed for the fiscal year to the State for Federal-aid highways and highway safety construction programs, and the amount shall be determined by multiplying:

    (i) The amount of funds transferred under paragraph (b)(1) of this section to the apportionment of the State under Section 402 for the fiscal year; by

    (ii) The ratio that:

    (A) The amount of obligation authority distributed for the fiscal year to the State for Federal-aid highways and highway safety construction programs; bears to

    (B) The total of the sums apportioned to the State for Federal-aid highways and highway safety construction programs (excluding sums not subject to any obligation limitation) for the fiscal year.

    (h) Notwithstanding any other provision of law, no limitation on the total obligations for highway safety programs under Section 402 shall apply to funds transferred under paragraph (b)(1) of this section.

    § 1270.8 Procedures affecting States in noncompliance.

    (a) Each fiscal year, each State determined to be in noncompliance with 23 U.S.C. 154 and this part will be advised of the funds reserved from apportionment under § 1270.6 in the notice of apportionments required under 23 U.S.C. 104(e), which normally occurs on October 1.

    (b) Each State whose funds are reserved under § 1270.6 will be afforded 30 days from the date of issuance of the notice of apportionments described in paragraph (a) of this section to submit documentation showing why it is in compliance. Documentation must be submitted to the appropriate NHTSA Regional Administrator. If such documentation is provided, a reservation will remain in place on the State's affected funds while the agencies consider the information. If the agencies affirm the noncompliance determination, the State will be notified of the decision and the affected funds will be processed in accordance with the requests regarding the derivation and distribution of funds provided by the State as required by §§ 1270.6(b) and 1270.7(a).

    § 1270.9 States' responsibilities regarding compliance.

    (a) States are responsible for ensuring compliance with 23 U.S.C. 154 and this part.

    (b) A State that has been determined to be in compliance with the requirements of 23 U.S.C. 154 and this part must promptly notify the appropriate NHTSA Regional Administrator in writing of any change or change in enforcement of the State's open container law, identifying the specific change(s).

    2. Revise part 1275 to read as follows: PART 1275—REPEAT INTOXICATED DRIVER LAWS Sec. 1275.1 Scope. 1275.2 Purpose. 1275.3 Definitions. 1275.4 Compliance criteria. 1275.5 “General practice” certification option. 1275.6 Reservation of funds. 1275.7 Use of reserved funds. 1275.8 Procedures affecting States in noncompliance. 1275.9 States' responsibilities regarding compliance. Authority:

    23 U.S.C. 164; delegation of authority at 49 CFR 1.85 and 1.95.

    § 1275.1 Scope.

    This part prescribes the requirements necessary to implement Section 164 of Title 23, United States Code, which encourages States to enact and enforce repeat intoxicated driver laws.

    § 1275.2 Purpose.

    The purpose of this part is to specify the steps that States must take to avoid the reservation and transfer of Federal-aid highway funds for noncompliance with 23 U.S.C. 164.

    § 1275.3 Definitions.

    As used in this part:

    (a) 24-7 sobriety program has the meaning given the term in § 1300.23(b) of this title.

    (b) Alcohol concentration means grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.

    (c) Driving while intoxicated means driving or being in actual physical control of a motor vehicle while having an alcohol concentration above the permitted limit as established by each State, or an equivalent non-BAC intoxicated driving offense.

    (d) Driving under the influence has the same meaning as “driving while intoxicated.”

    (e) FHWA means the Federal Highway Administration.

    (f) Ignition interlock system means a State-certified system designed to prevent drivers from starting their car when their breath alcohol concentration is at or above a preset level.

    (g) Imprisonment means confinement in a jail, minimum security facility, community corrections facility, house arrest with electronic monitoring, inpatient rehabilitation or treatment center, or other facility, provided the individual under confinement is in fact being detained.

    (h) Mandatory sentence means a sentence that cannot be waived, suspended, or otherwise reduced by the State.

    (i) Motor vehicle means a vehicle driven or drawn by mechanical power and manufactured primarily for use on public highways, but does not include a vehicle operated solely on a rail line or a commercial vehicle.

    (j) NHTSA means the National Highway Traffic Safety Administration.

    (k) Repeat intoxicated driver means a person who has been convicted of driving while intoxicated or driving under the influence of alcohol more than once in any five-year period.

    (l) Repeat intoxicated driver law means a State law or combination of laws or programs that impose the minimum penalties specified in § 1275.4 for all repeat intoxicated drivers.

    (m) State means any of the 50 States, the District of Columbia or the Commonwealth of Puerto Rico.

    § 1275.4 Compliance criteria.

    (a) To avoid the reservation of funds specified in § 1275.6, a State must enact and enforce a repeat intoxicated driver law that establishes, as a minimum penalty, that all repeat intoxicated drivers:

    (1) Receive, for a period of not less than one year, one or more of the following penalties:

    (i) A suspension of all driving privileges;

    (ii) A restriction on driving privileges that limits the individual to operating only motor vehicles with an ignition interlock device installed, unless a special exception described in paragraph (b) of this section applies; or

    (iii) A restriction on driving privileges that limits the individual to operating motor vehicles only if participating in, and complying with, a 24-7 sobriety program;

    (2) Receive an assessment of their degree of alcohol abuse, and treatment as appropriate; and

    (3) Except as provided in § 1275.5, receive a mandatory sentence of—

    (i) Not less than five days (120 hours) of imprisonment or 30 days (240 hours) of community service for a second offense; and

    (ii) Not less than ten days (240 hours) of imprisonment or 60 days (480 hours) of community service for a third or subsequent offense.

    (b) Special exceptions. As used in paragraph (a)(1)(ii) of this section, special exception means an exception under a State alcohol-ignition interlock law for the following circumstances only:

    (1) The individual is required to operate an employer's motor vehicle in the course and scope of employment and the business entity that owns the vehicle is not owned or controlled by the individual; or

    (2) The individual is certified by a medical doctor as being unable to provide a deep lung breath sample for analysis by an ignition interlock device.

    § 1275.5 “General practice” certification option.

    (a) Notwithstanding § 1275.4(a)(3), a State that otherwise meets the requirements of § 1275.4 may comply with 23 U.S.C. 164 and this part based on the State's “general practice” for incarceration. A State electing this option shall—

    (1) If the State law does not comply with the requirements of § 1275.4(a)(3)(i), submit the following certification signed by the Governor's Representative for Highway Safety:

    I, [Name], Governor's Representative for Highway Safety, certify that, in [State name], at least 75 percent of repeat intoxicated drivers receive a mandatory sentence of imprisonment for a second offense, as those terms are defined in 23 CFR 1275.3. This certification is based on data from the period of twelve consecutive months of the calendar year immediately preceding the date of this certification. I sign this certification based on personal knowledge and other appropriate inquiry. [Signature of Governor's Representative for Highway Safety] [Date of signature]

    (2) If the State law does not comply with the requirements of § 1275.4(a)(3)(ii), submit the following certification signed by the Governor's Representative for Highway Safety:

    I, [Name], Governor's Representative for Highway Safety, certify that, in [State name], at least 75 percent of repeat intoxicated drivers receive a mandatory sentence of not less than ten days (240 hours) of imprisonment for a third or subsequent offense, as those terms are defined in 23 CFR 1275.3. This certification is based on data from the period of twelve consecutive months of the calendar year immediately preceding the date of this certification. I sign this certification based on personal knowledge and other appropriate inquiry. [Signature of Governor's Representative for Highway Safety] [Date of signature]

    (b) A State electing the option under this section must submit a new certification to the appropriate NHTSA Regional Administrator by not later than October 1 of each fiscal year to avoid the reservation of funds specified in § 1275.6. The State is encouraged to submit the certification by August 15 to avoid any delay in release of funds on October 1 of that calendar year while NHTSA evaluates its certification.

    § 1275.6 Reservation of funds.

    (a) On October 1 of each fiscal year, if a State has not enacted or is not enforcing a law that complies with § 1275.4, FHWA will reserve an amount equal to 2.5 percent of the funds apportioned to the State for that fiscal year under each of 23 U.S.C. 104(b)(1) and (b)(2).

    (b) The reservation of funds will be made based on proportionate amounts from each of the apportionments under 23 U.S.C. 104(b)(1) and (b)(2). The State's Department of Transportation will have 30 days from the date the funds are reserved under this section to notify FHWA, through the appropriate Division Administrator, if it would like to change the distribution of the amounts reserved between 23 U.S.C. 104(b)(1) and (b)(2).

    § 1275.7 Use of reserved funds.

    (a) Not later than 60 days after the funds are reserved under § 1275.6, the Governor's Representative for Highway Safety and the Chief Executive Officer of the State's Department of Transportation for each State must jointly identify, in writing to the appropriate NHTSA Regional Administrator and FHWA Division Administrator, how the funds will be programmed between alcohol-impaired driving programs under paragraph (c) of this section and highway safety improvement program activities under paragraph (d) of this section. Funds will remain reserved until this notification is provided by the State.

    (b) As soon as practicable after NHTSA and FHWA receive the notification described in paragraph (a) of this section, the Secretary will:

    (1) Transfer the reserved funds identified by the State for alcohol-impaired driving programs under paragraph (c) of this section to the apportionment of the State under 23 U.S.C. 402; and

    (2) Release the reserved funds identified by the State for highway safety improvement program activities under paragraph (d) of this section to the State Department of Transportation.

    (c) Any funds transferred under paragraph (b)(1) of this section shall be—

    (1) Used for approved projects for alcohol-impaired driving countermeasures; or

    (2) Directed to State and local law enforcement agencies for enforcement of laws prohibiting driving while intoxicated or driving under the influence and other related laws (including regulations), including the purchase of equipment, the training of officers, and the use of additional personnel for specific alcohol-impaired driving countermeasures, dedicated to enforcement of the laws (including regulations).

    (d) Any funds released under paragraph (b)(2) of this section shall be used for highway safety improvement program activities eligible under 23 U.S.C. 148.

    (e) Once the funds have been transferred or released under paragraph (b) of this section, the State may not revise the notification described in paragraph (a) of this section identifying how the funds will be programmed between alcohol-impaired driving programs and highway safety improvement program activities.

    (f) The Federal share of the cost of any project carried out with the funds transferred or released under paragraph (b) of this section is 100 percent.

    (g)(1) If any funds are transferred under paragraph (b)(1) of this section to the apportionment of a State under Section 402 for a fiscal year, the amount of obligation authority determined under paragraph (g)(2) of this section shall be transferred for carrying out projects described in paragraph (c) of this section.

    (2) The obligation authority referred to in paragraph (g)(1) of this section shall be transferred from the obligation authority distributed for the fiscal year to the State for Federal-aid highways and highway safety construction programs, and the amount shall be determined by multiplying:

    (i) The amount of funds transferred under paragraph (b)(1) of this section to the apportionment of the State under Section 402 for the fiscal year; by

    (ii) The ratio that:

    (A) The amount of obligation authority distributed for the fiscal year to the State for Federal-aid highways and highway safety construction programs; bears to

    (B) The total of the sums apportioned to the State for Federal-aid highways and highway safety construction programs (excluding sums not subject to any obligation limitation) for the fiscal year.

    (h) Notwithstanding any other provision of law, no limitation on the total obligations for highway safety programs under Section 402 shall apply to funds transferred under paragraph (b)(1) of this section.

    § 1275.8 Procedures affecting States in noncompliance.

    (a) Each fiscal year, each State determined to be in noncompliance with 23 U.S.C. 164 and this part will be advised of the funds reserved from apportionment under § 1275.6 in the notice of apportionments required under 23 U.S.C. 104(e), which normally occurs on October 1.

    (b) Each State whose funds are reserved under § 1275.6 will be afforded 30 days from the date of issuance of the notice of apportionments described in paragraph (a) of this section to submit documentation showing why it is in compliance (which may include a “general practice” certification under § 1275.5). Documentation must be submitted to the appropriate NHTSA Regional Administrator. If such documentation is provided, a reservation will remain in place on the State's affected funds while the agencies consider the information. If the agencies affirm the noncompliance determination, the State will be notified of the decision and the affected funds will be processed in accordance with the requests regarding the derivation and distribution of funds provided by the State as required by §§ 1275.6(b) and 1275.7(a).

    § 1275.9 State' responsibilities regarding compliance.

    (a) States are responsible for ensuring compliance with 23 U.S.C. 164 and this part.

    (b) A State that has been determined to be in compliance with the requirements of 23 U.S.C. 164 and this part must promptly notify the appropriate NHTSA Regional Administrator in writing of any change or change in enforcement of the State's repeat intoxicated driver law, identifying the specific change(s).

    Dated: September 27, 2016, under authority delegated in 49 CFR 1.95. Mark R. Rosekind, Administrator, National Highway Traffic Safety Administration. Dated: September 27, 2016, under authority delegated in 49 CFR 1.85. Gregory G. Nadeau, Administrator, Federal Highway Administration.
    [FR Doc. 2016-23788 Filed 9-28-16; 4:15 pm] BILLING CODE 4910-59-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0891] Drawbridge Operation Regulation; Newtown Creek, Brooklyn and Queens, NY AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Pulaski Bridge across the Newtown Creek, mile 0.6, between Brooklyn and Queens, New York. This deviation is necessary to allow the bridge owner to perform span locks adjustment at the bridge.

    DATES:

    This deviation is effective from 12:01 a.m. on October 3, 2016 to 5 a.m. on October 14, 2016.

    ADDRESSES:

    The docket for this deviation, [USCG-2016-0891] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Judy Leung-Yee, Project Officer, First Coast Guard District, telephone (212) 514-4330, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Pulaski Bridge, mile 0.6, across the Newtown Creek, has a vertical clearance in the closed position of 39 feet at mean high water and 43 feet at mean low water. The existing bridge operating regulations are found at 33 CFR 117.801(g)(1).

    The waterway is transited by commercial barge traffic of various sizes.

    The bridge owner, New York City DOT, requested a temporary deviation from the normal operating schedule to perform span locks adjustment at the bridge.

    Under this temporary deviation, the Pulaski Bridge shall remain in the closed position from October 3, 2016 to October 14, 2016 between 12:01 a.m. and 5 a.m.

    Vessels able to pass under the bridge in the closed position may do so at anytime. The bridge will not be able to open for emergencies and there is no immediate alternate route for vessels to pass.

    The Coast Guard will inform the users of the waterways through our Local Notice and Broadcast to Mariners of the change in operating schedule for the bridge so that vessel operations can arrange their transits to minimize any impact caused by the temporary deviation. The Coast Guard notified known companies of the commercial oil and barge vessels in the area and they have no objections to 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 27, 2016. C.J. Bisignano, Supervisory Bridge Management Specialist, First Coast Guard District.
    [FR Doc. 2016-23690 Filed 9-29-16; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2016-0893] Eighth Coast Guard District Annual Safety Zones; Pittsburgh Steelers Fireworks; Allegheny River Mile 0.0-0.25, Ohio River 0.0-0.1, Monongahela River 0.0-0.1 AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation.

    SUMMARY:

    The Coast Guard will enforce a safety zone for the Pittsburgh Steelers Fireworks on the Allegheny River, from mile 0.0 to 0.25, Ohio River mile 0.0-0.1 and Monongahela River 0.0-0.1, to protect vessels transiting the area and event spectators from the hazards associated with the Pittsburgh Steelers barge-based fireworks display. During the enforcement period, entry into, transiting, or anchoring in the safety zone is prohibited to all vessels not registered with the sponsor as participants or official patrol vessels, unless specifically authorized by the Captain of the Port (COTP) Pittsburgh or a designated representative.

    DATES:

    The regulations in 33 CFR 165.801 Table 1, Sector Ohio Valley, No. 67 is effective from 7 p.m. until 9 p.m., on October 2, 2016.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this notice of enforcement, call or email MST1 Jennifer Haggins, Marine Safety Unit Pittsburgh, U.S. Coast Guard; telephone 412-221-0807, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce the Safety Zone for the annual Pittsburgh Pirates Fireworks listed in 33 CFR 165.801 Table 1, Sector Ohio Valley, No. 67 from 7 p.m. to 9 p.m. on October 2, 2016. Entry into the safety zone is prohibited unless authorized by the COTP or a designated representative. Persons or vessels desiring to enter into or passage through the safety zone must request permission from the COTP or a designated representative. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative.

    This notice of enforcement is issued under authority of 33 CFR 165.801 and 5 U.S.C. 552(a). In addition to this notice in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via Local Notice to Mariners and updates via Marine Information Broadcasts.

    L. McClain, Jr., Commander, U.S. Coast Guard, Captain of the Port Pittsburgh.
    [FR Doc. 2016-23635 Filed 9-29-16; 8:45 am] BILLING CODE P
    POSTAL SERVICE 39 CFR Part 111 Enterprise Payment System and Enterprise PO Boxes Online AGENCY:

    Postal ServiceTM.

    ACTION:

    Final rule.

    SUMMARY:

    The Postal Service is revising Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM®) to provide an enhanced method for commercial customers to pay for and manage their services online using a single account.

    DATES:

    Effective Date: September 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Ingrid Molinary at (202) 268-4138, or Jacqueline Erwin at (202) 268-2158.

    SUPPLEMENTARY INFORMATION:

    The Postal Service published an interim final rule (81 FR 48711) on July 26, 2016, to enhance online payment options for commercial customers, with a comment period which ended August 26, 2016. The Postal Service did not receive any customer comments.

    The U.S. Postal Service is upgrading its payment architecture for business customers. The new Enterprise Payment System (EPS) will replace the current product-centric payment system with a centralized account management system enabling commercial customers to pay for and manage their services online using a single account.

    EPS has been designed to be part of USPS products and services offered through the existing Business Customer Gateway (BCG) portal. Commercial customers who want to use EPS will need to be a registered BCG user, request access to EPS and open an Enterprise Payment Account (EPA) to pay for their products and services. EPA requires that the customers fund the account via Electronic Funds Transfer—either Automated Clearing House (ACH) Debit or ACH Credit.

    The first feature of EPS will allow business customers to open, close, and pay for their PO Boxes and Caller Service numbers (including reserved numbers) online using the new Enterprise PO Boxes Online (EPOBOL). EPS customers are required to have an EPA to pay for EPOBOL service. Future phases of EPS will provide commercial customers functionality to pay for additional services.

    List of Subjects in 39 CFR Part 111

    Administrative practice and procedure, Postal Service.

    The Postal Service adopts the following changes to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1.

    Accordingly, 39 CFR part 111 is amended as follows:

    PART 111—[AMENDED] 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. Revise the Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM) as follows: Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM) 500 Additional Mailing Services 508 Recipient Services 4.0 Post Office Box Service 4.4 Basis of Fees and Payment 4.4.3 Payment [Revise third sentence and add e to text in 4.4.3 as follows:]

    * * * Customers may pay the fee using one of the following methods:

    * * * e. Online using an Enterprise Payment Account (EPA) when business customers are registered at the Enterprise PO Boxes Online (EPOBOL) system. The EPA with automatic yearly renewal (at twice the semi-annual fee) is the required payment method for EPOBOL customers.

    5.0 Caller Service 5.5 Basis of Fees and Payment 5.5.5 Payment [Add text at the end of 5.5.5 as follows:]

    * * * Registered customers may also pay the fee online using an Enterprise Payment Account (EPA). The EPA with automatic yearly renewal (at twice the semi-annual fee) is the required payment method for EPOBOL customers.

    We will publish an appropriate amendment to 39 CFR part 111 to reflect these changes.

    Stanley F. Mires, Attorney, Federal Compliance.
    [FR Doc. 2016-22517 Filed 9-29-16; 8:45 am] BILLING CODE 7710-12-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2015-0155; FRL-9953-35-Region 4] Air Plan Approval; Mississippi; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve, in part, and disapprove in part, the State Implementation Plan (SIP) submission, submitted by the State of Mississippi, through the Mississippi Department of Environmental Quality (MDEQ), on June 20, 2013, for inclusion into the Mississippi SIP. This final action pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour sulfur dioxide (SO2) national ambient air quality standard (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an “infrastructure SIP submission.” MDEQ certified that the Mississippi SIP contains provisions that ensure the 2010 1-hour SO2 NAAQS is implemented, enforced, and maintained in Mississippi. EPA has determined that Mississippi's infrastructure SIP submission, provided to EPA on June 20, 2013, satisfies certain required infrastructure elements for the 2010 1-hour SO2 NAAQS.

    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-2015-0155. 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:

    Michele Notarianni, 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. Ms. Notarianni can be reached via electronic mail at [email protected] or via telephone at (404) 562-9031.

    SUPPLEMENTARY INFORMATION: I. Background and Overview

    On June 2, 2010 (75 FR 35520, June 22, 2010), EPA promulgated a revised primary SO2 NAAQS to an hourly standard of 75 parts per billion (ppb) based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2010 1-hour SO2 NAAQS to EPA no later than June 2, 2013.1

    1 In the proposed action, EPA incorrectly cited a date of June 22, 2013, for the due date of infrastructure SIPs for the 2010 1-hour SO2 NAAQS. 80 FR 51158 (August 24, 2015).

    EPA is acting upon the SIP submission from Mississippi that addresses the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 1-hour SO2 NAAQS. In a proposed rulemaking published on February 11, 2016, EPA proposed to approve portions of Mississippi's June 20, 2013, 2010 1-hour SO2 NAAQS infrastructure SIP submission. See 81 FR 7259. The details of Mississippi's submission and the rationale for EPA's actions are explained in the proposed rulemaking. Comments on the proposed rulemaking were due on or before March 14, 2016. EPA received adverse comments on the proposed action.

    II. Response to Comments

    EPA received one set of comments on the February 11, 2016, proposed rulemaking to approve portions of Mississippi's 2010 1-hour SO2 NAAQS infrastructure SIP submission intended to meet the CAA requirements for the 2010 1-hour SO2 NAAQS. A summary of the comments and EPA's responses are provided below.2 A full set of these comments is provided in the docket for this final rulemaking action.

    2 EPA's responses to these comments are consistent with actions taken on 2010 1-hour SO2 NAAQS infrastructure SIP submissions for Virginia (80 FR 11557, March 4, 2015) at https://www.thefederalregister.org/fdsys/pkg/FR-2015-03-04/pdf/2015-04377.pdf and West Virginia (79 FR 62022, October 16, 2014) at https://www.thefederalregister.org/fdsys/pkg/FR-2014-10-16/pdf/2014-24658.pdf.

    A. Comments on Infrastructure SIP Requirements for Enforceable Emission Limits 1. The Plain Language of the CAA

    Comment 1: The Commenter contends that the plain language of section 110(a)(2)(A) of the CAA requires the inclusion of enforceable emission limits in an infrastructure SIP to prevent NAAQS exceedances in areas not designated nonattainment. In support, the Commenter quotes the language in section 110(a)(1) that requires states to adopt a plan for implementation, maintenance, and enforcement of the NAAQS and the language in section 110(a)(2)(A) that requires SIPs to include enforceable emissions limitations as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the CAA. The Commenter then states that applicable requirements of the CAA include requirements for the attainment and maintenance of the NAAQS, and that CAA section 110(a)(2)(A) requires infrastructure SIPs to include enforceable emission limits to prevent exceedances of the NAAQS. The Commenter claims that Mississippi's SIP submission does not meet this asserted requirement. Thus, the Commenter asserts that EPA must disapprove Mississippi's SO2 infrastructure SIP submission because it fails to include enforceable emission limitations necessary to ensure attainment and maintenance of the NAAQS as required by CAA section 110(a)(2)(A). The Commenter then contends that the Mississippi 2010 1-hour SO2 infrastructure SIP submission fails to comport with CAA requirements for SIPs to establish enforceable emission limits that are adequate to prohibit NAAQS exceedances in areas not designated nonattainment.

    Response 1: EPA disagrees that section 110 must be interpreted in the manner suggested by the Commenter in the context of infrastructure SIP submissions. Section 110 is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of not only that structure, but also of the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later-promulgated and more specific SIP planning requirements of the CAA, EPA interprets the requirement in section 110(a)(1) that the plan provide for “implementation, maintenance and enforcement” in conjunction with the requirements in section 110(a)(2)(A) to mean that the infrastructure SIP must contain enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program.

    With regard to the requirement for emission limitations in section 110(a)(2)(A), EPA has interpreted this to mean, for purposes of infrastructure SIP submissions, that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may elect to impose as part of such SIP submission. As EPA stated in “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” dated September 13, 2013, (Infrastructure SIP Guidance), “[t]he conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substantive SIP revision to update the SIP, or both. Overall, the infrastructure SIP submission process provides an opportunity . . . to review the basic structural requirements of the air agency's air quality management program in light of each new or revised NAAQS.” Infrastructure SIP Guidance at pp. 1-2. Mississippi appropriately demonstrated that its SIP has SO2 emissions limitations and the “structural requirements” to implement the 2010 1-hour SO2 NAAQS in its infrastructure SIP submission.

    The Commenter makes general allegations that Mississippi does not have sufficient protective measures to prevent SO2 NAAQS exceedances. EPA addressed the adequacy of Mississippi's infrastructure SIP for 110(a)(2)(A) purposes in the proposed rule and explained why the SIP includes enforceable emission limitations and other control measures that aid in maintaining the 2010 1-hour SO2 NAAQS throughout the State. These include State regulations which collectively establish enforceable emissions limitations and other control measures, means or techniques for activities that contribute to SO2 concentrations in the ambient air, and provide authority for MDEQ to establish such limits and measures as well as schedules for compliance through SIP-approved permits to meet the applicable requirements of the CAA. See 81 FR 7259. As discussed in this rulemaking, EPA finds these provisions adequately address section 110(a)(2)(A) to aid in attaining and/or maintaining the 2010 1-hour SO2 NAAQS and finds Mississippi demonstrated that it has the necessary tools to implement and enforce the 2010 1-hour SO2 NAAQS.

    2. The Legislative History of the CAA

    Comment 2: The Commenter cites two excerpts from the legislative history of the 1970 CAA and claims that the “legislative history of infrastructure SIPs provides that states must include enforceable emission limits in their infrastructure SIPs sufficient to ensure the implementation, maintenance, and attainment of each NAAQS in all areas of the State.”

    Response 2: As provided in the previous response, the CAA, as enacted in 1970, including its legislative history, cannot be interpreted in isolation from the later amendments that refined that structure and deleted relevant language from section 110 concerning attainment. In any event, the two excerpts of legislative history the Commenter cites merely provide that states should include enforceable emission limits in their SIPs and they do not mention or otherwise address whether states are required to impose additional emission limitations or control measures as part of the infrastructure SIP submission, as opposed to requirements for other types of SIP submissions such as attainment plans required under section 110(a)(2)(I). As provided in Response 1, the proposed rule explains why the SIP includes sufficient enforceable emissions limitations for purposes of the infrastructure SIP submission.

    3. Case Law

    Comment 3: The Commenter also discusses several court decisions concerning the CAA, which the Commenter claims support its contention that courts have been clear that section 110(a)(2)(A) requires enforceable emissions limits in infrastructure SIP submissions to prevent violations of the NAAQS. The Commenter first cites to language in Train v. NRDC, 421 U.S. 60, 78 (1975), addressing the requirement for “emission limitations” and stating that emission limitations “are the specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meets the national standards.” The Commenter also cites to Pennsylvania Dept. of Envtl. Resources v. EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA directs EPA to withhold approval of a SIP where it does not ensure maintenance of the NAAQS, and to Mision Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the CAA of 1970. The Commenter contends that the 1990 Amendments do not alter how courts have interpreted the requirements of section 110, quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004) which in turn quoted section 110(a)(2)(A) of the CAA and also stated that “SIPs must include certain measures Congress specified” to ensure attainment of the NAAQS. The Commenter also quotes several additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th Cir. 2012) (“[t]he Clean Air Act directs states to develop implementation plans—SIPs—that `assure' attainment and maintenance of [NAAQS] through enforceable emissions limitations”); Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000) (“EPA's deference to a state is conditioned on the state's submission of a plan `which satisfies the standards of § 110(a)(2)' and which includes emission limitations that result in compliance with the NAAQS”; and Hall v. EPA 273 F.3d 1146 (9th Cir. 2001) for the proposition that EPA may not approve a SIP revision that does not demonstrate how the rules would not interfere with attainment and maintenance of the NAAQS.

    Response 3: None of the cases the Commenter cites support the Commenter's contention that it is clear that section 110(a)(2)(A) requires infrastructure SIP submissions to include detailed plans providing for attainment and maintenance of the NAAQS in all areas of the state, nor do they shed light on how EPA may reasonably interpret section 110(a)(2)(A). With the exception of Train, none of the cases the Commenter cites specifically concerned the interpretation of CAA section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 Act). Rather, the other courts referenced section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 CAA) in the background section of decisions involving challenges to EPA actions on revisions to SIPs that were required and approved under other provisions of the CAA or in the context of an enforcement action.

    In Train, 421 U.S. 60, the Court was addressing a state revision to an attainment plan submission made pursuant to section 110 of the CAA, the primary statutory provision at that time addressing such submissions. The issue in that case was whether changes to requirements that would occur before attainment was required were variances that should be addressed pursuant to the provision governing SIP revisions or were “postponements” that must be addressed under section 110(f) of the CAA of 1970, which contained prescriptive criteria. The Court concluded that EPA reasonably interpreted section 110(f) not to restrict a state's choice of the mix of control measures needed to attain the NAAQS, so long as the state met other applicable requirements of the CAA, and that revisions to SIPs that would not impact attainment of the NAAQS by the attainment date were not subject to the limits of section 110(f). Thus the issue was not whether the specific SIP at issue needs to provide for attainment or whether emissions limits are needed as part of the SIP; rather the issue was which statutory provision governed when the state wanted to revise the emission limits in its SIP if such revision would not impact attainment or maintenance of the NAAQS.

    The decision in Pennsylvania Dept. of Envtl. Resources was also decided based on a pre-1990 provision of the CAA. At issue was whether EPA properly rejected a revision to an approved SIP where the inventories relied on by the state for the updated submission had gaps. The Court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of EPA's disapproval, but did not provide any interpretation of that provision. This decision did not address the question at issue in this action, i.e., what a state must include in an infrastructure SIP submission for purposes of section 110(a)(2)(A). Yet, even if the Court had interpreted that provision, EPA notes that it was modified by Congress in 1990; thus, this decision has little bearing on the issue here.

    At issue in Mision Industrial, 547 F.2d 123, was the definition of “emissions limitation” not whether section 110 requires the state to demonstrate how all areas of the state will attain and maintain the NAAQS as part of their infrastructure SIPs. The language from the opinion the Commenter quotes does not interpret but rather merely describes section 110(a)(2)(A). The Commenter does not cite to this case to assert that the measures relied on by the state in the infrastructure SIP are not “emissions limitations” and the decision in this case has no bearing here. In Mont. Sulphur & Chem. Co., 666 F.3d 1174, the Court was reviewing a Federal implementation plan (FIP) that EPA promulgated after a long history of the State failing to submit an adequate SIP in response to EPA's finding under section 110(k)(5) that the previously approved SIP was substantially inadequate to attain or maintain the NAAQS, which triggered the State's duty to submit a new SIP to show how it would remedy that deficiency and attain the NAAQS. The Court cited generally to sections 107 and 110(a)(2)(A) of the CAA for the proposition that SIPs should assure attainment and maintenance of NAAQS through emission limitations, but this language was not part of the Court's holding in the case, which focused instead on whether EPA's finding of SIP inadequacy and adoption of a remedial FIP were lawful. The Commenter suggests that Alaska Dept. of Envtl. Conservation, 540 U.S. 461, stands for the proposition that the 1990 CAA Amendments do not alter how courts interpret section 110. This claim is inaccurate. Rather, the Court quoted section 110(a)(2)(A), which, as noted previously, differs from the pre-1990 version of that provision and the court makes no mention of the changed language. Furthermore, the Commenter also quotes the Court's statement that “SIPs must include certain measures Congress specified,” but that statement specifically referenced the requirement in section 110(a)(2)(C), which requires an enforcement program and a program for the regulation of the modification and construction of new sources. Notably, at issue in that case was the State's “new source” permitting program, not what is required for purposes of an infrastructure SIP submission for purposes of section 110(a)(2)(A).

    EPA does not believe any of these court decisions addressed required measures for infrastructure SIPs and believes nothing in the opinions addressed whether infrastructure SIP submissions must contain emission limitations or measures to ensure attainment and maintenance of the NAAQS.

    4. EPA Regulations, Such as 40 CFR 51.112(a)

    Comment 4: The Commenter cites to 40 CFR 51.112(a), providing that “Each plan must demonstrate that the measures, rules, and regulations contained in it are adequate to provide for the timely attainment and maintenance of the national standard that it implements.” The Commenter relies on a statement in the preamble to the 1986 action restructuring and consolidating provisions in part 51, in which EPA stated that “[i]t is beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act . . .” 51 FR 40656. Thus, the Commenter contends that “the provisions of 40 CFR 51.112 are not limited to nonattainment SIPs; the regulation instead applies to Infrastructure SIPs, which are required to attain and maintain the NAAQS in all areas of a state, including those not designated nonattainment.”

    Response 4: The Commenter's reliance on 40 CFR 51.112 to support its argument that infrastructure SIPs must contain emission limits which ensure attainment and maintenance of the NAAQS is incorrect. It is clear on its face that 40 CFR 51.112 directly applies to state SIP submissions for control strategy SIPs, i.e., plans that are specifically required to attain and/or maintain the NAAQS. These regulatory requirements apply when states are developing “control strategy” SIPs under other provisions of the CAA, such as attainment plans required for the various NAAQS in Part D and maintenance plans required in section 175A. The Commenter's suggestion that 40 CFR 51.112 must apply to all SIP submissions required by section 110 based on the preamble to EPA's action “restructuring and consolidating” provisions in part 51, is also incorrect.3 EPA's action in 1986 was not to establish new substantive planning requirements, but rather was meant merely to consolidate and restructure provisions that had previously been promulgated.

    3 EPA noted that it had already issued guidance addressing the new “Part D” attainment planning obligations. Also, as to maintenance regulations, EPA expressly stated that it was not making any revisions other than to re-number those provisions. See 51 FR 40657.

    Although EPA was explicit that it was not establishing requirements interpreting the provisions of new “Part D” of the CAA, it is clear that the regulations being restructured and consolidated were intended to address control strategy plans. In the preamble, EPA clearly stated that 40 CFR 51.112 was replacing 40 CFR 51.13 (“Control strategy: SOX and PM (portion)”), 51.14 (“Control strategy: CO, HC, OX and NO2 (portion)”), 51.80 (“Demonstration of attainment: Pb (portion)”), and 51.82 (“Air quality data (portion)”). Id. at 40660. Thus, the present-day 40 CFR 51.112 contains consolidated provisions that are focused on control strategy SIPs, and the infrastructure SIP is not such a plan.

    5. EPA Interpretations in Other Rulemakings

    Comment 5: The Commenter also references a 2006 partial approval and partial disapproval of revisions to Missouri's existing plan addressing the SO2 NAAQS and claims it was an action in which EPA relied on section 110(a)(2)(A) and 40 CFR 51.112 to reject an infrastructure SIP. Specifically, the Commenter asserts that in that action, EPA cited section 110(a)(2)(A) as a basis for disapproving a revision to the State plan on the basis that the State failed to demonstrate the SIP was sufficient to ensure attainment and maintenance of the SO2 NAAQS after revision of an emission limit and cited to 40 CFR 51.112 as requiring that a plan demonstrates the rules in a SIP are adequate to attain the SO2 NAAQS.

    Response 5: EPA's partial approval and partial disapproval of revisions to restrictions on emissions of sulfur compounds for the Missouri SIP in 71 FR 12623 specifically addressed Missouri's attainment SIP submission—not Missouri's infrastructure SIP submission. It is clear from the final Missouri rule that EPA was not reviewing an initial infrastructure SIP submission, but rather reviewing proposed SIP revisions that would make an already approved SIP designed to demonstrate attainment of the NAAQS less stringent. Therefore, EPA does not agree that the 2006 Missouri action referenced by the Commenter establishes how EPA reviews infrastructure SIP submissions for purpose of section 110(a)(2)(A).

    As discussed in the proposed rule, EPA finds that the Mississippi 2010 1-hour SO2 infrastructure SIP meets the appropriate and relevant structural requirements of section 110(a)(2) of the CAA that will aid in attaining and/or maintaining the 2010 1-hour SO2 NAAQS and that the State demonstrated that it has the necessary tools to implement and enforce the 2010 1-hour SO2 NAAQS.4

    4 EPA's final action does not address CAA section 110(a)(2)(D)(i)(I) because Mississippi has not made a submission for these elements.

    B. Comments on Mississippi SIP SO2 Emission Limits

    Comment 6: The Commenter asserts that EPA may not approve the Mississippi proposed SO2 infrastructure SIP because it fails to include enforceable emission limitations with a 1-hour averaging time that applies at all times. The Commenter cites to CAA section 302(k) which requires that emission limits must limit the quantity, rate or concentration of emissions and must apply on a continuous basis. The Commenter states that “[e]nforceable emission limitations contained in the I-SIP must, therefore, be accompanied by proper averaging times; otherwise an appropriate numerical emission limit could allow for peaks that exceed the NAAQS and yet still be permitted since they would be averaged with lower emissions at other times.” The Commenter also cites to recommended averaging times in EPA guidance providing that SIP emissions limits, “should not exceed the averaging time of the applicable NAAQS that the limit is intended to help attain.” EPA Memorandum of April 23, 2014, to Regional Air Division Directors, Regions 1-10, Guidance for 1-Hour SO2 NAAQS Nonattainment Area SIP Submissions, at 22, available at https://www.epa.gov/sites/production/files/2016-06/documents/20140423guidance_nonattainment_sip.pdf. The Commenter notes that this EPA guidance provides that “ `any emissions limits based on averaging periods longer than 1 hour should be designed to have comparable stringency to a 1-hour average limit at the critical emission value.' ”

    The Commenter also cites to a February 3, 2011, EPA Region 7 letter to the Kansas Department of Health and Environment regarding the need for 1-hour SO2 emission limits in a prevention of significant deterioration (PSD) permit, an EPA Environmental Appeals Board decision rejecting use of a 3-hour averaging time for a SO2 limit in a PSD permit, and EPA's disapproval of a Missouri SIP which relied on annual averaging for SO2 emission rates and claims EPA has stated that 1-hour averaging times are necessary for the 2010 1-hour SO2 NAAQS.5 The Commenter states, “Therefore, in order to ensure that Mississippi's Infrastructure SIP actually implements the SO2 NAAQS in every area of the state, the I-SIP must contain enforceable emission limits with one-hour averaging times, monitored continuously, for large sources of SO2.” The Commenter asserts that EPA must disapprove Mississippi's infrastructure SIP because it fails to require emission limits with adequate averaging times.

    5 The Commenter cited to In re: Mississippi Lime Co., PSD APPEAL 11-01, 2011 WL 3557194, at *26-27 (EPA Aug. 9, 2011) and 71 FR 12623, 12624 (March 13, 2006) (EPA disapproval of a control strategy SO2 SIP).

    Response 6: As explained in detail in previous responses, the purpose of the infrastructure SIP is to ensure that a state has the structural capability to implement and enforce the NAAQS and thus, additional SO2 emission limitations to ensure attainment and maintenance of the NAAQS are not required for such infrastructure SIPs.6 EPA disagrees that it must disapprove the proposed Mississippi infrastructure SIP submission merely because the SIP does not contain enforceable SO2 emission limitations with 1-hour averaging periods that apply at all times, as this issue is not appropriate for resolution in this action.7 Therefore, because EPA finds Mississippi's SO2 infrastructure SIP approvable without the additional SO2 emission limitations showing attainment of the NAAQS, EPA finds the issue of appropriate averaging periods for such future limitations not relevant at this time.

    6 For a discussion on emission averaging times for emissions limitations for SO2 attainment SIPs, see the April 23, 2014, Guidance for 1-Hour SO 2 Nonattainment Area SIP Submissions. As noted by the Commenter, EPA explained that it is possible, in specific cases, for states to develop control strategies that account for variability in 1-hour emissions rates through emission limits with averaging times that are longer than 1-hour, using averaging times as long as 30-days, but still provide for attainment of the 2010 SO2 NAAQS as long as the limits are of at least comparable stringency to a 1-hour limit at the critical emission value. EPA has not taken final action to approve any specific submission of such a limit that a state has relied upon to demonstrate NAAQS attainment, and Mississippi has not submitted such a limit for that purpose here, so it is premature at this time to evaluate whether any emission limit in Mississippi's SIP is in accordance with the April 23, 2014, guidance. If and when Mississippi submits an emission limitation that relies upon such a longer averaging time to demonstrate NAAQS attainment, EPA will evaluate it then.

    7 There are currently no areas designated nonattainment pursuant to CAA section 107 for the 2010 1-hour SO2 NAAQS in Mississippi. EPA believes the appropriate time for examining the necessity of 1-hour SO2 emission limits on specific sources is within the attainment planning process.

    Further, the Commenter's citation to a prior EPA discussion on emission limitations required in PSD permits (from EPA's Environmental Appeals Board decision and EPA's letter to Kansas' permitting authority) pursuant to part C of the CAA is neither relevant nor applicable to infrastructure SIP submissions under CAA section 110. In addition, and as previously discussed, the EPA disapproval of the 2006 Missouri SIP was a disapproval relating to an attainment plan SIP submission required pursuant to part D attainment planning and is likewise not relevant to the analysis of infrastructure SIP requirements.

    Comment 7: Citing to section 110(a)(1) and (a)(2)(A) of the CAA, the Commenter contends that EPA may not approve Mississippi's infrastructure SIP because it does not include enforceable 1-hour emission limits for sources that the Commenter claims are currently contributing to NAAQS exceedances. The Commenter asserts that emission limits are especially important for meeting the 1-hour SO2 NAAQS because SO2 impacts are strongly source oriented. The Commenter states that “[d]espite the large contribution from coal-fired EGUs [electricity generating units] to the State's SO2 pollution, Mississippi's I-SIP lacks enforceable emissions limitations applicable to its coal-fired EGUs sufficient to ensure the implementation, attainment, and maintenance of the 2010 SO2 NAAQS.” The Commenter refers to air dispersion modeling it conducted for one power plant in Mississippi, the R.D. Morrow Power Plant. Further, the Commenter cites two court cases to support its statement that “. . . an agency may not ignore information put in front of it” and that thus, the Commenter contends that EPA must consider its expert air dispersion modeling “which demonstrates the inadequacy of Mississippi's rules and regulations for SO2 emissions.” The Commenter summarizes its modeling results for the R.D. Morrow Power Plant claiming that the data predict exceedances of the standard. Thus, the Commenter contends that Mississippi's infrastructure submission is “substantially inadequate to attain and maintain the NAAQS which it implements, as evidenced by expert air dispersion modeling demonstrating that the emission limits under the laws and regulations cited to in the SO2 I-SIP Certification allow for exceedances of the NAAQS.” Thus, the Commenter asserts that EPA must disapprove Mississippi's SIP submission, and must establish a FIP “which incorporates necessary and appropriate source-specific enforceable emission limitations (preferably informed by modeling) on Plant Morrow, as well as any other major sources of SO2 pollution in the State which are not presently located in nonattainment areas and have modeled exceedances of the NAAQS.” Further, the Commenter states that “For Plant Morrow enforceable emission limitations must be at least as stringent as the modeling-based limits [provided by the Commenter] in order to protect the one-hour SO2 NAAQS and implement, maintain, and enforce the standard in Mississippi.”

    The Commenter also asserts that Mississippi's infrastructure SIP must contain enforceable emission limits to avoid additional nonattainment designations “where modeling (or monitoring) shows that SO2 levels exceed the one-hour NAAQS.” The Commenter cites to EPA's Next Steps for Area Designations and Implementation of the Sulfur Dioxide National Ambient Air Quality Standard8 (February 6, 2013), and EPA's Final SO2 NAAQS Rule at 75 FR 35553. The Commenter further contends that EPA's proposal to designate Lamar County, Mississippi, as attainment/unclassifiable is based on modeling for Plant Morrow provided by the State of Mississippi with two “significant problems”: (1) The modeling scenario using allowable emissions was not included in accordance with the EPA-approved modeling protocol and (2) the background SO2 concentrations (14 parts per billion, or 36.65 micrograms per cubic meter) from the Jackson Monitoring Station in Hinds County monitor were “erroneously relied on”, given that “EPA has determined the design values for the Hinds County monitors invalid.” For these two issues related to the modeling, the Commenter cites to the modeling from the State performed by Trinity Consultants, 1-Hour SO 2 NAAQS DESIGNATION MODELING REPORT, pp. 23 and 32, available at https://www.epa.gov/sites/production/files/2016-03/documents/ms-rec-att1-r2.pdf, and EPA's August 3, 2015, SO2 Design Values file.

    Response 7: As stated previously, EPA believes that the proper inquiry is whether Mississippi has met the basic, structural SIP requirements appropriate at the point in time EPA is acting upon the infrastructure submissions. Emissions limitations and other control measures, whether on coal-fired EGUs or other SO2 sources, that may be needed to attain and maintain the NAAQS in areas designated nonattainment for that NAAQS are due on a different schedule from the section 110 infrastructure SIP submission. A state, like Mississippi, may reference pre-existing SIP emission limits or other rules contained in part D plans for previous NAAQS in an infrastructure SIP submission for purposes of section 110(a)(2)(A). For example, Mississippi submitted a list of existing emission reduction measures in the SIP that control emissions of SO2 as discussed above in response to a prior comment and discussed in the proposed rulemaking on Mississippi's SO2 infrastructure SIP. These provisions have the ability to reduce SO2 overall. Although the Mississippi SIP relies on measures and programs used to implement previous SO2 NAAQS, these provisions are not limited to reducing SO2 levels to meet one specific NAAQS and will continue to provide benefits for the 2010 1-hour SO2 NAAQS.

    Regarding the air dispersion modeling conducted by the Commenter pursuant to AERMOD and its comments on the modeling submitted by Mississippi pursuant to the section 107 designation process for the R.D. Morrow Power Plant, EPA is not in this action making a determination regarding the air quality status in the area where this facility is located, and is not evaluating whether emissions applicable to this facility are adequate to attain and maintain the NAAQS. Consequently, the EPA does not find the modeling information relevant for review of an infrastructure SIP for purposes of section 110(a)(2)(A). When additional areas in Mississippi are designated under the 2010 1-hour SO2 NAAQS, and if any additional areas in Mississippi are designated nonattainment in the future, any potential future modeling submitted by the State with designations or attainment demonstrations would need to account for any new emissions limitations Mississippi develops to support such designation or demonstration, which at this point is unknown. While EPA has extensively discussed the use of modeling for attainment demonstration purposes and for designations,9 EPA has recommended that such modeling was not needed for the SO2 infrastructure SIPs for the 2010 1-hour SO2 NAAQS for purposes of section 110(a)(2)(A), which are not actions in which EPA makes determinations regarding current air quality status. See April 12, 2012, letters to states and 2012 Draft White Paper.10

    9See for example, EPA's discussion of modeling for characterizing air quality in the Agency's August 21, 2015, final rule at 80 FR 51052 and for nonattainment planning in the April 23, 2014, Guidance for 1-Hour SO 2 Nonattainment Area SIP Submissions.

    10Implementation of the 2010 Primary 1-Hour SO 2 NAAQS, Draft White Paper for Discussion, May 2012 (2012 Draft White Paper) and a sample April 12, 2012, letter from EPA to states are available in the docket for this action.

    In conclusion, EPA disagrees with the Commenter's statements that EPA must disapprove Mississippi's infrastructure SIP submission because it does not establish specific enforceable SO2 emission limits, either on coal-fired EGUs or other large SO2 sources, in order to demonstrate attainment and maintenance with the 2010 1-hour SO2 NAAQS at this time.

    Comment 8: The Commenter alleges that the SO2 infrastructure SIP submittal does not address sources significantly contributing to nonattainment or interfering with maintenance of the 2010 1-hour SO2 NAAQS in other states as required by section 110(a)(2)(D)(i)(I) of the CAA, and asserts EPA must therefore disapprove the infrastructure SIP and impose a FIP. The Commenter states that “EPA must implement a FIP containing source-specific emission limitations and other measures to ensure that pollution from Mississippi is not preventing other states from attaining or maintaining the NAAQS.” The Commenter notes that regardless of whether the Mississippi submitted a SIP revision to address CAA section 110(a)(2)(D)(i)(I), the State “has long since passed the June 2013 deadline to submit such provisions; rather than await some potential future submission, Mississippi's failure to satisfy its Good Neighbor obligations must be rectified now.” The Commenter explains that the Supreme Court disapproved the view that states cannot address section 110(a)(2)(D)(i) until EPA resolves issues related to CSAPR and that compliance with this provision is a “mandatory duty”, citing to Homer City, 696 F.3d 7, 37 (D.C. Cir. 2012), rev'd, No. 12-1182, slip op. at 27-28 (U.S. Apr. 29, 2014). The Commenter also highlights from Order on Petition No. VI-2014-04 at 10 (citing EPA v. EME Homer City Generation, 134 S.Ct. 1584, 1601 (2014)) that, “[T]he Supreme Court has affirmed that the EPA is not required to provide any implementation guidance before states' interstate transport obligation can be addressed.”

    Response 8: This action does not address whether sources in Mississippi are significantly contributing to nonattainment or interfering with maintenance of the 2010 1-hour SO2 NAAQS in another state as required by section 110(a)(2)(D)(i)(I) of the CAA (the good neighbor provision). Thus, EPA disagrees with the Commenter's statement that EPA must disapprove the submitted 2010 1-hour SO2 infrastructure SIP due to Mississippi's failure to address section 110(a)(2)(D)(i)(I). In EPA's rulemaking proposing to approve Mississippi's infrastructure SIP for the 2010 1-hour SO2 NAAQS, EPA clearly stated that it was not taking any action with respect to the good neighbor provision in section 110(a)(2)(D)(i)(I). Mississippi did not make a submission to address the requirements of section 110(a)(2)(D)(i)(I) for the 2010 1-hour SO2 NAAQS, and thus there is no such submission upon which EPA proposed to take action on under section 110(k) of the CAA. Similarly, EPA disagrees with the Commenter's assertion that EPA cannot approve other elements of an infrastructure SIP submission without the good neighbor provision. There is no basis for the contention that EPA has triggered its obligation to issue a FIP to address the good neighbor obligation under section 110(c), as EPA has neither found that Mississippi failed to timely submit a required 110(a)(2)(D)(i)(I) SIP submission for the 2010 1-hour SO2 NAAQS or found that such a submission was incomplete, nor has EPA disapproved a SIP submission addressing 110(a)(2)(D)(i)(I) with respect to the 2010 1-hour SO2 NAAQS.

    EPA acknowledges the Commenter's concern for the interstate transport of air pollutants and agrees in general with the Commenter that sections 110(a)(1) and (a)(2) of the CAA generally require states to submit, within three years of promulgation of a new or revised NAAQS, a plan which addresses cross-state air pollution under section 110(a)(2)(D)(i)(I). However, EPA disagrees with the Commenter's argument that EPA cannot approve an infrastructure SIP submission without the good neighbor provision. Section 110(k)(3) of the CAA authorizes EPA to approve a plan in full, disapprove it in full, or approve it in part and disapprove it in part, depending on the extent to which such plan meets the requirements of the CAA. This authority to approve state SIP revisions in separable parts was included in the 1990 Amendments to the CAA to overrule a decision in the Court of Appeals for the Ninth Circuit holding that EPA could not approve individual measures in a plan submission without either approving or disapproving the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)).

    EPA interprets its authority under section 110(k)(3) of the CAA, as affording EPA the discretion to approve, or conditionally approve, individual elements of Mississippi's infrastructure SIP submissions for the 2010 1-hour SO2 NAAQS, separate and apart from any action with respect to the requirements of section 110(a)(2)(D)(i)(I) of the CAA with respect to that NAAQS. EPA views discrete infrastructure SIP requirements, such as the requirements of 110(a)(2)(D)(i)(I), as severable from the other infrastructure elements and interprets section 110(k)(3) as allowing it to act on individual severable measures in a plan submission. In short, EPA believes that even if Mississippi had made a SIP submission for section 110(a)(2)(D)(i)(I) of the CAA for the 2010 1-hour SO2 NAAQS, which to date it has not, EPA would still have discretion under section 110(k) of the CAA to act upon the various individual elements of the State's infrastructure SIP submission, separately or together, as appropriate.

    The Commenter raises no compelling legal or environmental rationale for an alternate interpretation. Nothing in the Supreme Court's April 2014 decision in EME Homer City alters EPA's interpretation that EPA may act on individual severable measures, including the requirements of section 110(a)(2)(D)(i)(I), in a SIP submission. See EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (affirming a state's obligation to submit a SIP revision addressing section 110(a)(2)(D)(i)(I) independent of EPA's action finding significant contribution or interference with maintenance). In sum, the concerns raised by the Commenter do not establish that it is inappropriate or unreasonable for EPA to approve the portions of Mississippi's infrastructure SIP submission for the 2010 1-hour SO2 NAAQS.

    EPA has no obligation at this time to issue a FIP pursuant to 110(c)(1) to address Mississippi's obligations under section 110(a)(2)(D)(i)(I) until EPA first either finds Mississippi failed to make a required submission addressing the element or the State has made such a submission but it is incomplete, or EPA disapproves a SIP submission addressing that element. Until either occurs, EPA does not have the obligation to issue a FIP pursuant to section 110(c) with respect to the good neighbor provision. Therefore, EPA disagrees with the Commenter's contention that it must issue a FIP for Mississippi to address 110(a)(2)(D)(i)(I) for the 2010 1-hour SO2 NAAQS at this time.

    III. Final Action

    With the exception of the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4) and the state board majority requirements respecting significant portion of income of section 110(a)(2)(E)(ii), EPA is taking final action to approve Mississippi's infrastructure submission submitted on June 20, 2013, for the 2010 1-hour SO2 NAAQS for the above described infrastructure SIP requirements. EPA is taking final action to approve Mississippi's infrastructure SIP submission for the 2010 1-hour SO2 NAAQS for the above described infrastructure SIP requirements because the submission is consistent with section 110 of the CAA.

    With regard to the state board majority requirements respecting significant portion of income, EPA is finalizing a disapproval of Mississippi's June 20, 2013, infrastructure submission. Under section 179(a) of the CAA, final disapproval of a submittal that addresses a requirement of a CAA Part D Plan or is required in response to a finding of substantial inadequacy as described in CAA section 110(k)(5) (SIP call) starts a sanctions clock. The portion of section 110(a)(2)(E)(ii) provisions (the provisions being proposed for disapproval in this notice) were not submitted to meet requirements for Part D or a SIP call, and therefore, no sanctions will be triggered. However, this final action will trigger the requirement under section 110(c) that EPA promulgate a Federal Implementation Plan (FIP) no later than two years from the date of the disapproval unless the State corrects the deficiency, and EPA approves the plan or plan revision before EPA promulgates such FIP.

    IV. 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).

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

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 29, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: September 16, 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 Z—Mississippi 2. Section 52.1270(e) is amended by adding a new entry “110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour SO2 NAAQS” at the end of the table to read as follows:
    § 52.1270 Identification of plan.

    (e) * * *

    EPA Approved Mississippi Non-Regulatory Provisions Name of non-regulatory SIP provision Applicable geographic or nonattainment area State submittal date/effective date EPA approval date Explanation *         *         *         *         *         *         * 110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour SO2 NAAQS Mississippi 6/20/2013 9/30/2016, [Insert Federal Register citation] With the exception of the interstate transport requirements of section 110(a)(2)(D)(i)(I) and (II) (prongs 1, 2, and 4) and the state board majority requirements respecting significant portion of income of section 110(a)(2)(E)(ii).
    3. Section 52.1272 is amended by adding paragraph (e) to read as follows:
    § 52.1272 Approval status.

    (e) Disapproval. Submittal from the State of Mississippi, through the Mississippi Department of Environmental Quality (MDEQ) on June 20, 2013, to address the Clean Air Act section 110(a)(2)(E)(ii) for the 2010 1-hour sulfur dioxide (SO2) National Ambient Air Quality Standards (NAAQS) concerning state board majority requirements respecting significant portion of income of section 128(a)(1). EPA is disapproving MDEQ's submittal with respect to section 110(a)(2)(E)(ii) because a majority of board members may still derive a significant portion of income from persons subject to permits or enforcement orders issued by the Mississippi Boards, and therefore, its current SIP does not meet the section 128(a)(1) majority requirements respecting significant portion of income for the 2010 1-hour SO2 NAAQS.

    [FR Doc. 2016-23598 Filed 9-29-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2014-0423; FRL-9953-18-Region 4] Air Plan Approval; Florida; Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard AGENCY:

    Environmental Protection Agency.

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve the State Implementation Plan (SIP) submissions, submitted by the State of Florida, through the Florida Department of Environmental Protection (FDEP), on June 3, 2013, and supplemented on January 8, 2014, for inclusion into the Florida SIP. This final action pertains to the infrastructure requirements of the Clean Air Act (CAA or Act) for the 2010 1-hour sulfur dioxide (SO2) national ambient air quality standard (NAAQS). The CAA requires that each state adopt and submit a SIP for the implementation, maintenance and enforcement of each NAAQS promulgated by EPA, which is commonly referred to as an “infrastructure SIP submission.” FDEP certified that the Florida SIP contains provisions that ensure the 2010 1-hour SO2 NAAQS is implemented, enforced, and maintained in Florida. EPA has determined that the Florida's infrastructure SIP submissions, provided to EPA on June 3, 2013, and supplemented on January 8, 2014, satisfy the required infrastructure elements for the 2010 1-hour SO2 NAAQS.

    DATES:

    This rule is effective October 31, 2016.

    ADDRESSES:

    EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2014-0423. 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:

    Michele Notarianni, 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. Ms. Notarianni can be reached via electronic mail at [email protected] or via telephone at (404) 562-9031.

    SUPPLEMENTARY INFORMATION:

    I. Background and Overview

    On June 2, 2010 (75 FR 35520, June 22, 2010), EPA promulgated a revised primary SO2 NAAQS to an hourly standard of 75 parts per billion (ppb) based on a 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations. Pursuant to section 110(a)(1) of the CAA, states are required to submit SIPs meeting the applicable requirements of section 110(a)(2) within three years after promulgation of a new or revised NAAQS or within such shorter period as EPA may prescribe. Section 110(a)(2) requires states to address basic SIP elements such as requirements for monitoring, basic program requirements and legal authority that are designed to assure attainment and maintenance of the NAAQS. States were required to submit such SIPs for the 2010 1-hour SO2 NAAQS to EPA no later than June 2, 2013.1

    1 In the proposed action, EPA incorrectly cited a date of June 22, 2013, for the due date of infrastructure SIPs for the 2010 1-hour SO2 NAAQS. 80 FR 51158 (August 24, 2015).

    EPA is acting upon the SIP submissions from Florida that address the infrastructure requirements of CAA sections 110(a)(1) and 110(a)(2) for the 2010 1-hour SO2 NAAQS. The requirement for states to make a SIP submission of this type arises out of CAA section 110(a)(1). Pursuant to section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS.

    In a proposed rulemaking published on August 24, 2015, EPA proposed to approve Florida's June 3, 2013, and January 8, 2014, 2010 1-hour SO2 NAAQS infrastructure SIP submissions.2 See 80 FR 51157. The details of Florida's submissions and the rationale for EPA's actions are explained in the proposed rulemaking. Comments on the proposed rulemaking were due on or before September 23, 2015. EPA received adverse comments on the proposed action.

    2 Florida's 2010 1-hour SO2 NAAQS infrastructure SIP submission dated June 3, 2013, and supplemented on January 8, 2014, are also collectively referred to as “Florida's SO2 infrastructure SIP” in this action.

    II. Response to Comments

    EPA received one set of comments on the August 24, 2015, proposed rulemaking to approve Florida's 2010 1-hour SO2 NAAQS infrastructure SIP submissions intended to meet the CAA requirements for the 2010 1-hour SO2 NAAQS. A summary of the comments and EPA's responses are provided below.3 A full set of these comments is provided in the docket for today's final rulemaking action.

    3 EPA's responses to these comments are consistent with actions taken on 2010 1-hour SO2 NAAQS infrastructure SIP submissions for Virginia (80 FR 11557, March 4, 2015) at https://www.thefederalregister.org/fdsys/pkg/FR-2015-03-04/pdf/2015-04377.pdf and West Virginia (79 FR 62022, October 16, 2014) at https://www.thefederalregister.org/fdsys/pkg/FR-2014-0-16/pdf/2014-24658.pdf.

    A. Comments on Infrastructure SIP Requirements for Enforceable Emission Limits 1. The Plain Language of the CAA

    Comment 1: The Commenter contends that the plain language of section 110(a)(2)(A) of the CAA requires the inclusion of enforceable emission limits in an infrastructure SIP to prevent NAAQS exceedances in areas not designated nonattainment. In support, the Commenter quotes the language in section 110(a)(1) that requires states to adopt a plan for implementation, maintenance, and enforcement of the NAAQS and the language in section 110(a)(2)(A) that requires SIPs to include enforceable emissions limitations as well as schedules and timetables for compliance, as may be necessary or appropriate to meet the applicable requirements of the CAA. The Commenter then states that applicable requirements of the CAA include requirements for the attainment and maintenance of the NAAQS, and that CAA section 110(a)(2)(A) requires infrastructure SIPs to include enforceable emission limits to prevent exceedances of the NAAQS. The Commenter claims that Florida's SIP submission does not meet this asserted requirement. Thus, the Commenter asserts that EPA must disapprove Florida's proposed SO2 infrastructure SIP submission because it fails to include enforceable emission limitations necessary to ensure attainment and maintenance of the NAAQS as required by CAA section 110(a)(2)(A). The Commenter then contends that the Florida 2010 1-hour SO2 infrastructure SIP submission fails to comport with CAA requirements for SIPs to establish enforceable emission limits that are adequate to prohibit NAAQS exceedances in areas not designated nonattainment.

    Response 1: EPA disagrees that section 110 must be interpreted in the manner suggested by the Commenter in the context of infrastructure SIP submissions. Section 110 is only one provision that is part of the complicated structure governing implementation of the NAAQS program under the CAA, as amended in 1990, and it must be interpreted in the context of not only that structure, but also of the historical evolution of that structure. In light of the revisions to section 110 since 1970 and the later-promulgated and more specific SIP planning requirements of the CAA, EPA interprets the requirement in section 110(a)(1) that the plan provide for “implementation, maintenance and enforcement” in conjunction with the requirements in section 110(a)(2)(A) to mean that the infrastructure SIP must contain enforceable emission limits that will aid in attaining and/or maintaining the NAAQS and that the state demonstrate that it has the necessary tools to implement and enforce a NAAQS, such as adequate state personnel and an enforcement program.

    With regard to the requirement for emission limitations in section 110(a)(2)(A), EPA has interpreted this to mean, for purposes of infrastructure SIP submissions, that the state may rely on measures already in place to address the pollutant at issue or any new control measures that the state may elect to impose as part of such SIP submission. As EPA stated in “Guidance on Infrastructure State Implementation Plan (SIP) Elements under Clean Air Act Sections 110(a)(1) and 110(a)(2),” dated September 13, 2013, (Infrastructure SIP Guidance), “[t]he conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substantive SIP revision to update the SIP, or both. Overall, the infrastructure SIP submission process provides an opportunity . . . to review the basic structural requirements of the air agency's air quality management program in light of each new or revised NAAQS.” Infrastructure SIP Guidance at pp. 1-2. Florida appropriately demonstrated that its SIP has SO2 emissions limitations and the “structural requirements” to implement the 2010 1-hour SO2 NAAQS in its infrastructure SIP submission.

    The Commenter makes general allegations that Florida does not have sufficient protective measures to prevent SO2 NAAQS exceedances. EPA addressed the adequacy of Florida's infrastructure SIP for 110(a)(2)(A) purposes in the proposed rule and explained why the SIP includes enforceable emission limitations and other control measures that aid in maintaining the 2010 1-hour SO2 NAAQS throughout the State. These include State regulations which collectively establish enforceable emissions limitations and other control measures, means or techniques for activities that contribute to SO2 concentrations in the ambient air, and provide authority for FDEP to establish such limits and measures as well as schedules for compliance through SIP-approved permits to meet the applicable requirements of the CAA. See 80 FR 51161. EPA finds these provisions adequately address section 110(a)(2)(A) to aid in attaining and/or maintaining the 2010 1-hour SO2 NAAQS and finds Florida demonstrated that it has the necessary tools to implement and enforce the 2010 1-hour SO2 NAAQS.

    2. The Legislative History of the CAA

    Comment 2: The Commenter cites two excerpts from the legislative history of the 1970 CAA and claims that the “legislative history of infrastructure SIPs provides that states must include enforceable emission limits in their infrastructure SIPs sufficient to ensure the implementation, maintenance, and attainment of each NAAQS in all areas of the State.”

    Response 2: As provided in the previous response, the CAA, as enacted in 1970, including its legislative history, cannot be interpreted in isolation from the later amendments that refined that structure and deleted relevant language from section 110 concerning attainment. In any event, the two excerpts of legislative history the Commenter cites merely provide that states should include enforceable emission limits in their SIPs and they do not mention or otherwise address whether states are required to impose additional emission limitations or control measures as part of the infrastructure SIP submission, as opposed to requirements for other types of SIP submissions such as attainment plans required under section 110(a)(2)(I). As provided in Response 1, the proposed rule explains why the SIP includes sufficient enforceable emissions limitations for purposes of the infrastructure SIP submission.

    3. Case Law

    Comment 3: The Commenter also discusses several court decisions concerning the CAA, which the Commenter claims support its contention that courts have been clear that section 110(a)(2)(A) requires enforceable emissions limits in infrastructure SIP submissions to prevent violations of the NAAQS. The Commenter first cites to language in Train v. NRDC, 421 U.S. 60, 78 (1975), addressing the requirement for “emission limitations” and stating that emission limitations “are the specific rules to which operators of pollution sources are subject, and which if enforced should result in ambient air which meets the national standards.” The Commenter also cites to Pennsylvania Dept. of Envtl. Resources v. EPA, 932 F.2d 269, 272 (3d Cir. 1991) for the proposition that the CAA directs EPA to withhold approval of a SIP where it does not ensure maintenance of the NAAQS, and to Mission Industrial, Inc. v. EPA, 547 F.2d 123, 129 (1st Cir. 1976), which quoted section 110(a)(2)(B) of the CAA of 1970. The Commenter contends that the 1990 Amendments do not alter how courts have interpreted the requirements of section 110, quoting Alaska Dept. of Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004) which in turn quoted section 110(a)(2)(A) of the CAA and also stated that “SIPs must include certain measures Congress specified” to ensure attainment of the NAAQS. The Commenter also quotes several additional opinions in this vein. Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1180 (9th Cir. 2012) (“[t]he Clean Air Act directs states to develop implementation plans—SIPs—that `assure' attainment and maintenance of [NAAQS] through enforceable emissions limitations”); Mich. Dept. of Envtl. Quality v. Browner, 230 F.3d 181 (6th Cir. 2000) (“EPA's deference to a state is conditioned on the state's submission of a plan `which satisfies the standards of § 110(a)(2)' and which includes emission limitations that result in compliance with the NAAQS”; and Hall v. EPA 273 F.3d 1146 (9th Cir. 2001) for the proposition that EPA may not approve a SIP revision that does not demonstrate how the rules would not interfere with attainment and maintenance of the NAAQS.

    Response 3: None of the cases the Commenter cites support the Commenter's contention that it is clear that section 110(a)(2)(A) requires infrastructure SIP submissions to include detailed plans providing for attainment and maintenance of the NAAQS in all areas of the state, nor do they shed light on how EPA may reasonably interpret section 110(a)(2)(A). With the exception of Train, none of the cases the Commenter cites specifically concerned the interpretation of CAA section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 Act). Rather, the other courts referenced section 110(a)(2)(A) (or section 110(a)(2)(B) of the pre-1990 CAA) in the background section of decisions in the context of a challenge to an EPA action on revisions to a SIP that was required and approved as meeting other provisions of the CAA or in the context of an enforcement action.

    In Train, 421 U.S. 60, the Court was addressing a state revision to an attainment plan submission made pursuant to section 110 of the CAA, the primary statutory provision at that time addressing such submissions. The issue in that case concerned whether changes to requirements that would occur before attainment was required were variances that should be addressed pursuant to the provision governing SIP revisions or were “postponements” that must be addressed under section 110(f) of the CAA of 1970, which contained prescriptive criteria. The Court concluded that EPA reasonably interpreted section 110(f) not to restrict a state's choice of the mix of control measures needed to attain the NAAQS, so long as the state met other applicable requirements of the CAA, and that revisions to SIPs that would not impact attainment of the NAAQS by the attainment date were not subject to the limits of section 110(f). Thus the issue was not whether the specific SIP at issue needs to provide for attainment or whether emissions limits are needed as part of the SIP; rather the issue was which statutory provision governed when the state wanted to revise the emission limits in its SIP if such revision would not impact attainment or maintenance of the NAAQS.

    The decision in Pennsylvania Dept. of Envtl. Resources was also decided based on a pre-1990 provision of the CAA. At issue was whether EPA properly rejected a revision to an approved SIP where the inventories relied on by the state for the updated submission had gaps. The Court quoted section 110(a)(2)(B) of the pre-1990 CAA in support of EPA's disapproval, but did not provide any interpretation of that provision. This decision did not address the question at issue in this action, i.e., what a state must include in an infrastructure SIP submission for purposes of section 110(a)(2)(A). Yet, even if the Court had interpreted that provision, EPA notes that it was modified by Congress in 1990; thus, this decision has little bearing on the issue here.

    At issue in Mision Industrial, 547 F.2d 123, was the definition of “emissions limitation” not whether section 110 requires the state to demonstrate how all areas of the state will attain and maintain the NAAQS as part of their infrastructure SIPs. The language from the opinion the Commenter quotes does not interpret but rather merely describes section 110(a)(2)(A). The Commenter does not cite to this case to assert that the measures relied on by the state in the infrastructure SIP are not “emissions limitations” and the decision in this case has no bearing here. In Mont. Sulphur & Chem. Co., 666 F.3d 1174, the Court was reviewing a Federal implementation plan (FIP) that EPA promulgated after a long history of the State failing to submit an adequate SIP in response to EPA's finding under section 110(k)(5) that the previously approved SIP was substantially inadequate to attain or maintain the NAAQS, which triggered the State's duty to submit a new SIP to show how it would remedy that deficiency and attain the NAAQS. The Court cited generally to sections 107 and 110(a)(2)(A) of the CAA for the proposition that SIPs should assure attainment and maintenance of NAAQS through emission limitations, but this language was not part of the Court's holding in the case, which focused instead on whether EPA's finding of SIP inadequacy and adoption of a remedial FIP were lawful. The Commenter suggests that Alaska Dept. of Envtl. Conservation, 540 U.S. 461, stands for the proposition that the 1990 CAA Amendments do not alter how courts interpret section 110. This claim is inaccurate. Rather, the Court quoted section 110(a)(2)(A), which, as noted previously, differs from the pre-1990 version of that provision and the court makes no mention of the changed language. Furthermore, the Commenter also quotes the Court's statement that “SIPs must include certain measures Congress specified,” but that statement specifically referenced the requirement in section 110(a)(2)(C), which requires an enforcement program and a program for the regulation of the modification and construction of new sources. Notably, at issue in that case was the State's “new source” permitting program, not what is required for purposes of an infrastructure SIP submission for purposes of section 110(a)(2)(A).

    Two of the cases the Commenter cites, Mich. Dept. of Envtl. Quality, 230 F.3d 185, and Hall, 273 F.3d 1146, interpret CAA section 110(l), the provision governing “revisions” to plans. Neither case, however, addressed the question at issue here, i.e, what states are required to address for purposes of an infrastructure SIP submission for purposes of section 110(a)(2)(A). In those cases, the courts cited to section 110(a)(2)(A) solely for the purpose of providing a brief background of the CAA.

    EPA does not believe any of these court decisions addressed required measures for infrastructure SIPs and believes nothing in the opinions addressed whether infrastructure SIP submissions must contain emission limitations or measures to ensure attainment and maintenance of the NAAQS.

    4. EPA Regulations, Such as 40 CFR 51.112(a)

    Comment 4: The Commenter cites to 40 CFR 51.112(a), providing that “Each plan must demonstrate that the measures, rules, and regulations contained in it are adequate to provide for the timely attainment and maintenance of the national standard that it implements.” The Commenter relies on a statement in the preamble to the 1986 action restructuring and consolidating provisions in part 51, in which EPA stated that “[i]t is beyond the scope of th[is] rulemaking to address the provisions of Part D of the Act . . .” 51 FR 40656. Thus, the Commenter contends that “the provisions of 40 CFR 51.112 are not limited to nonattainment SIPs; the regulation instead applies to Infrastructure SIPs, which are required to attain and maintain the NAAQS in all areas of a state, including those not designated nonattainment.”

    Response 4: The Commenter's reliance on 40 CFR 51.112 to support its argument that infrastructure SIPs must contain emission limits which ensure attainment and maintenance of the NAAQS is incorrect. It is clear on its face that 40 CFR 51.112 directly applies to state SIP submissions for control strategy SIPs, i.e., plans that are specifically required to attain and/or maintain the NAAQS. These regulatory requirements apply when states are developing “control strategy” SIPs under other provisions of the CAA, such as attainment plans required for the various NAAQS in Part D and maintenance plans required in section 175A. The Commenter's suggestion that 40 CFR 51.112 must apply to all SIP submissions required by section 110 based on the preamble to EPA's action “restructuring and consolidating” provisions in part 51, is also incorrect.4 EPA's action in 1986 was not to establish new substantive planning requirements, but rather was meant merely to consolidate and restructure provisions that had previously been promulgated.

    4 EPA noted that it had already issued guidance addressing the new “Part D” attainment planning obligations. Also, as to maintenance regulations, EPA expressly stated that it was not making any revisions other than to re-number those provisions. See 51 FR 40657.

    Although EPA was explicit that it was not establishing requirements interpreting the provisions of new “Part D” of the CAA, it is clear that the regulations being restructured and consolidated were intended to address control strategy plans. In the preamble, EPA clearly stated that 40 CFR 51.112 was replacing 40 CFR 51.13 (“Control strategy: SOX and PM (portion)”), 51.14 (“Control strategy: CO, HC, OX and NO2 (portion)”), 51.80 (“Demonstration of attainment: Pb (portion)”), and 51.82 (“Air quality data (portion)”). Id. at 40660. Thus, the present-day 40 CFR 51.112 contains consolidated provisions that are focused on control strategy SIPs, and the infrastructure SIP is not such a plan.

    5. EPA Interpretations in Other Rulemakings

    Comment 5: The Commenter also references a 2006 partial approval and partial disapproval of revisions to Missouri's existing plan addressing the SO2 NAAQS and claims it was an action in which EPA relied on section 110(a)(2)(A) and 40 CFR 51.112 to reject an infrastructure SIP. Specifically, the Commenter asserts that in that action, EPA cited section 110(a)(2)(A) as a basis for disapproving a revision to the State plan on the basis that the State failed to demonstrate the SIP was sufficient to ensure attainment and maintenance of the SO2 NAAQS after revision of an emission limit and cited to 40 CFR 51.112 as requiring that a plan demonstrates the rules in a SIP are adequate to attain the SO2 NAAQS.

    Response 5: EPA's partial approval and partial disapproval of revisions to restrictions on emissions of sulfur compounds for the Missouri SIP in 71 FR 12623 specifically addressed Missouri's attainment SIP submission—not Missouri's infrastructure SIP submission. It is clear from the final Missouri rule that EPA was not reviewing an initial infrastructure SIP submission, but rather reviewing proposed SIP revisions that would make an already approved SIP designed to demonstrate attainment of the NAAQS less stringent. Therefore, EPA does not agree that the 2006 Missouri action referenced by the Commenter establishes how EPA reviews infrastructure SIP submissions for purpose of section 110(a)(2)(A).

    As discussed in the proposed rule, EPA finds that the Florida 2010 1-hour SO2 infrastructure SIP meets the appropriate and relevant structural requirements of section 110(a)(2) of the CAA that will aid in attaining and/or maintaining the 2010 1-hour SO2 NAAQS and that the State demonstrated that it has the necessary tools to implement and enforce the 2010 1-hour SO2 NAAQS.5

    5 EPA's final action does not address CAA section 110(a)(2)(D)(i)(I) because Florida has not made a submission for these elements.

    B. Comments on Florida SIP SO2 Emission Limits

    Comment 6: The Commenter asserts that EPA may not approve the Florida proposed SO2 infrastructure SIP because it fails to include enforceable emission limitations with a 1-hour averaging time that applies at all times. The Commenter cites to CAA section 302(k) which requires that emission limits must limit the quantity, rate or concentration of emissions and must apply on a continuous basis. The Commenter states that “[e]nforceable emission limitations contained in the I-SIP must, therefore, be accompanied by proper averaging times; otherwise an appropriate numerical emission limit could allow for peaks that exceed the NAAQS and yet still be permitted since they would be averaged with lower emissions at other times.” The Commenter also cites to recommended averaging times in EPA guidance providing that SIP emissions limits, “should not exceed the averaging time of the applicable NAAQS that the limit is intended to help attain.” EPA Memorandum of Apr. 23, 2014, to Regional Air Division Directors, Regions 1-10, Guidance for 1-Hour SO2 NAAQS Nonattainment Area SIP Submissions, at 22, available at https://www.epa.gov/sites/production/files/2016-06/documents/20140423guidance_nonattainment_sip.pdf. The Commenter also notes that this EPA guidance provides that “ `any emissions limits based on averaging periods longer than 1 hour should be designed to have comparable stringency to a 1-hour average limit at the critical emission value.' ”

    The Commenter also cites to a February 3, 2011, EPA Region 7 letter to the Kansas Department of Health and Environment regarding the need for 1-hour SO2 emission limits in a prevention of significant deterioration (PSD) permit, an EPA Environmental Hearing Board decision rejecting use of a 3-hour averaging time for a SO2 limit in a PSD permit, and EPA's disapproval of a Missouri SIP which relied on annual averaging for SO2 emission rates and claims EPA has stated that 1-hour averaging times are necessary for the 2010 1-hour SO2 NAAQS.6 The Commenter states, “Therefore, in order to ensure that Florida's Infrastructure SIP actually implements the SO2 NAAQS in every area of the state, the I-SIP must contain enforceable emission limits with one-hour averaging times, monitored continuously, for large sources of SO2.” The Commenter asserts that EPA must disapprove Florida's infrastructure SIP because it fails to require emission limits with adequate averaging times.

    6 The Commenter cited to In re: Mississippi Lime Co., PSDAPLPEAL 11-01, 2011 WL 3557194, at * 26-27 (EPA Aug. 9, 2011) and 71 FR 12623, 12624 (March 13, 2006) (EPA disapproval of a control strategy SO2 SIP).

    Response 6: As explained in detail in previous responses, the purpose of the infrastructure SIP is to ensure that a state has the structural capability to implement and enforce the NAAQS and thus, additional SO2 emission limitations to ensure attainment and maintenance of the NAAQS are not required for such infrastructure SIPs.7 EPA disagrees that it must disapprove the proposed Florida infrastructure SIP submission merely because the SIP does not contain enforceable SO2 emission limitations with 1-hour averaging periods that apply at all times, as this issue is not appropriate for resolution in this action in advance of EPA action on the State's submissions of other required SIP submissions including an attainment plan for two areas which are designated nonattainment pursuant to section 107 of the CAA.8 Therefore, because EPA finds Florida's SO2 infrastructure SIP approvable without the additional SO2 emission limitations showing attainment of the NAAQS, EPA finds the issue of appropriate averaging periods for such future limitations not relevant at this time.

    7 For a discussion on emission averaging times for emissions limitations for SO2 attainment SIPs, see the April 23, 2014, Guidance for 1-Hour SO 2 Nonattainment Area SIP Submissions. As noted by the commenter, EPA explained that it is possible, in specific cases, for states to develop control strategies that account for variability in 1-hour emissions rates through emission limits with averaging times that are longer than 1-hour, using averaging times as long as 30-days, but still provide for attainment of the 2010 SO2 NAAQS as long as the limits are of at least comparable stringency to a 1-hour limit at the critical emission value. EPA has not taken final action to approve any specific submission of such a limit that a state has relied upon to demonstrate NAAQS attainment, and Florida has not submitted such a limit for that purpose here, so it is premature at this time to evaluate whether any emission limit in Florida's SIP is in accordance with the April 23, 2014, guidance. If and when Florida submits an emission limitation that relies upon such a longer averaging time to demonstrate NAAQS attainment, EPA will evaluate it then.

    8 There are two designated nonattainment areas pursuant to CAA section 107 for the 2010 1-hour SO2 NAAQS in Florida and the State has submitted attainment plans for the 2010 1-hour SO2 NAAQS for sections 172, 191 and 192. EPA believes the appropriate time for examining the necessity of 1-hour SO2 emission limits on specific sources is within the attainment planning process.

    Further, Commenter's citation to a prior EPA discussion on emission limitations required in PSD permits (from EPA's Environmental Appeals Board decision and EPA's letter to Kansas' permitting authority) pursuant to part C of the CAA is neither relevant nor applicable to infrastructure SIP submissions under CAA section 110. In addition, and as previously discussed, the EPA disapproval of the 2006 Missouri SIP was a disapproval relating to an attainment plan SIP submission required pursuant to part D attainment planning and is likewise not relevant to the analysis of infrastructure SIP requirements.

    Comment 7: Citing to section 110(a)(1) and (a)(2)(A) of the CAA, the Commenter contends that EPA may not approve Florida's infrastructure SIP because it does not include enforceable 1-hour emission limits for sources that the Commenter claims are currently contributing to NAAQS exceedances. The Commenter asserts that emission limits are especially important for meeting the 1-hour SO2 NAAQS because SO2 impacts are strongly source oriented. The Commenter states that “[d]espite the large contribution from coal-fired EGUs [electricity generating units] to the State's SO2 pollution, Florida's I-SIP lacks enforceable emissions limitations applicable to its coal-fired EGUs sufficient to ensure the implementation, attainment, and maintenance of the 2010 SO2 NAAQS.” The Commenter refers to air dispersion modeling it conducted for two power plants in Florida, the C.D. McIntosh, Jr. Power Plant and the Crist Electric Generating Plant, which are located outside of the State's two nonattainment areas, and claims that “. . . the emission limitations relied on for implementation of the NAAQS in the I-SIP are insufficient to prevent exceedances of the NAAQS.” Further, the Commenter cites two court cases to support its statement that “. . . an agency may not ignore information put in front of it” and that thus, the Commenter contends that EPA must consider its expert air dispersion modeling submitted over the years which demonstrate the inadequacy of Florida's rules and regulations for SO2 emissions.” The Commenter summarizes its modeling results for the C.D. McIntosh, Jr. Power Plant and the Crist Electric Generating Plant, stating that the data predict exceedances of the standard “over wide areas of the state.” Thus, the Commenter contends that Florida's infrastructure submissions are “substantially inadequate to attain and maintain the NAAQS which it implements as evidenced by expert air dispersion modeling demonstrating that the emission limits under the laws and regulations cited to in the SO2 I-SIP Certification allow for exceedances of the NAAQS.” Thus, the Commenter asserts that EPA must disapprove Florida's SIP submissions, and must establish a FIP “which incorporates necessary and appropriate source-specific enforceable emission limitations (preferably informed by modeling) on C.D. McIntosh, Jr. Power Plant and Crist Electric Generating Plant, as well as any other major sources of SO2 pollution in the State which are not presently located in nonattainment areas and have modeled exceedances of the NAAQS.” Further, the Commenter states that “For C.D. McIntosh and Crist, enforceable emission limitations must be at least as stringent as the modeling-based limits [provided by the Commenter] in order to protect the one-hour SO2 NAAQS and implement, maintain, and enforce the standard in Florida.”

    Response 7: As stated previously, EPA believes that the proper inquiry is whether Florida has met the basic, structural SIP requirements appropriate at the point in time EPA is acting upon the infrastructure submissions. Emissions limitations and other control measures, whether on coal-fired EGUs or other SO2 sources, that may be needed to attain and maintain the NAAQS in areas designated nonattainment for that NAAQS are due on a different schedule from the section 110 infrastructure SIP submission. A state, like Florida, may reference pre-existing SIP emission limits or other rules contained in part D plans for previous NAAQS in an infrastructure SIP submission for purposes of section 110(a)(2)(A). For example, Florida submitted a list of existing emission reduction measures in the SIP that control emissions of SO2 as discussed above in response to a prior comment and discussed in the proposed rulemaking on Florida's SO2 infrastructure SIP. These provisions have the ability to reduce SO2 overall. Although the Florida SIP relies on measures and programs used to implement previous SO2 NAAQS, these provisions are not limited to reducing SO2 levels to meet one specific NAAQS and will continue to provide benefits for the 2010 1-hour SO2 NAAQS.

    Regarding the air dispersion modeling conducted by the Commenter pursuant to AERMOD for the C.D. McIntosh, Jr. Power Plant and the Crist Electric Generating Plant, EPA is not in this action making a determination regarding the air quality status in the area where these EGUs are located, and is not evaluating whether emissions applicable to these EGUs are adequate to attain and maintain the NAAQS. Consequently, the EPA does not find the modeling information relevant for review of an infrastructure SIP for purposes of section 110(a)(2)(A). When additional areas in Florida are designated under the 2010 1-hour SO2 NAAQS, and if any additional areas in Florida are designated nonattainment in the future, any potential future modeling submitted by the State with designations or attainment demonstrations would need to account for any new emissions limitations Florida develops to support such designation or demonstration, which at this point is unknown. While EPA has extensively discussed the use of modeling for attainment demonstration purposes and for designations,9 EPA has recommended that such modeling was not needed for the SO2 infrastructure SIPs for the 2010 1-hour SO2 NAAQS for purposes of section 110(a)(2)(A), which are not actions in which EPA makes determinations regarding current air quality status. See April 12, 2012, letters to states and 2012 Draft White Paper.10

    9See for example, EPA's discussion of modeling for characterizing air quality in the Agency's August 21, 2015, final rule at 80 FR 51052 and for nonattainment planning in the April 23, 2014, Guidance for 1-Hour SO 2 Nonattainment Area SIP Submissions.

    10Implementation of the 2010 Primary 1-Hour SO 2 NAAQS, Draft White Paper for Discussion, May 2012 (2012 Draft White Paper) and a sample April 12, 2012, letter from EPA to states are available in the docket for this action.

    In conclusion, EPA disagrees with the Commenter's statements that EPA must disapprove Florida's infrastructure SIP submissions because it does not establish specific enforceable SO2 emission limits, either on coal-fired EGUs or other large SO2 sources, in order to demonstrate attainment and maintenance with the 2010 1-hour SO2 NAAQS at this time.

    Comment 8: The Commenter alleges that the SO2 infrastructure SIP submittal does not address sources significantly contributing to nonattainment or interfering with maintenance of the 2010 1-hour SO2 NAAQS in other states as required by section 110(a)(2)(D)(i)(I) of the CAA, and asserts EPA must therefore disapprove the infrastructure SIP and impose a FIP. The Commenter states that “Florida's reliance on a 2012 EPA memorandum in which EPA stated that it did `not intend to make findings that states failed to submit SIPs to comply with section 110(a)(2)(D)(i)(I)' is improper”, and that such guidance contradicts the CAA. The Commenter notes that the Supreme Court disapproved the view that states cannot address section 110(a)(2)(D)(i) until EPA resolves issues related to CSAPR and that compliance with this provision is a “mandatory duty”, citing to Homer City, 696 F.3d 7, 37 (D.C. Cir. 2012), rev'd, No. 12-1182, slip op. at 27-28 (U.S. Apr. 29, 2014). The Commenter also highlights from Order on Petition No. VI-2014-04 at 10 (citing EPA v. EME Homer City Generation, 134 S. Ct. 1584, 1601 (2014) that, “[T]he Supreme Court has affirmed that the EPA is not required to provide any implementation guidance before states' interstate transport obligation can be addressed.”

    Response 8: This action does not address whether sources in Florida are significantly contributing to nonattainment or interfering with maintenance of the 2010 1-hour SO2 NAAQS in another state as required by section 110(a)(2)(D)(i)(I) of the CAA (the good neighbor provision). Thus, EPA disagrees with the Commenter's statement that EPA must disapprove the submitted 2010 1-hour SO2 infrastructure SIP due to Florida's failure to address section 110(a)(2)(D)(i)(I). In EPA's proposed rulemaking to approve Florida's infrastructure SIP for the 2010 1-hour SO2 NAAQS, EPA clearly stated that it was not taking any action with respect to the good neighbor provision in section 110(a)(2)(D)(i)(I). Florida did not make a submission to address the requirements of section 110(a)(2)(D)(i)(I) for the 2010 1-hour SO2 NAAQS, and thus there is no such submission upon which EPA proposed to take action on under section 110(k) of the CAA. Similarly, EPA disagrees with the Commenter's assertion that EPA cannot approve other elements of an infrastructure SIP submission without the good neighbor provision. There is no basis for the contention that EPA has triggered its obligation to issue a FIP to address the good neighbor obligation under section 110(c), as EPA has neither found that Florida failed to timely submit a required 110(a)(2)(D)(i)(I) SIP submission for the 2010 1-hour SO2 NAAQS or found that such a submission was incomplete, nor has EPA disapproved a SIP submission addressing 110(a)(2)(D)(i)(I) with respect to the 2010 1-hour SO2 NAAQS.

    EPA acknowledges the Commenter's concern for the interstate transport of air pollutants and agrees in general with the Commenter that sections 110(a)(1) and (a)(2) of the CAA generally require states to submit, within three years of promulgation of a new or revised NAAQS, a plan which addresses cross-state air pollution under section 110(a)(2)(D)(i)(I). However, EPA disagrees with the Commenter's argument that EPA cannot approve an infrastructure SIP submission without the good neighbor provision. Section 110(k)(3) of the CAA authorizes EPA to approve a plan in full, disapprove it in full, or approve it in part and disapprove it in part, depending on the extent to which such plan meets the requirements of the CAA. This authority to approve state SIP revisions in separable parts was included in the 1990 Amendments to the CAA to overrule a decision in the Court of Appeals for the Ninth Circuit holding that EPA could not approve individual measures in a plan submission without either approving or disapproving the plan as a whole. See S. Rep. No. 101-228, at 22, 1990 U.S.C.C.A.N. 3385, 3408 (discussing the express overruling of Abramowitz v. EPA, 832 F.2d 1071 (9th Cir. 1987)).

    EPA interprets its authority under section 110(k)(3) of the CAA, as affording EPA the discretion to approve, or conditionally approve, individual elements of Florida's infrastructure SIP submissions for the 2010 1-hour SO2 NAAQS, separate and apart from any action with respect to the requirements of section 110(a)(2)(D)(i)(I) of the CAA with respect to that NAAQS. EPA views discrete infrastructure SIP requirements, such as the requirements of 110(a)(2)(D)(i)(I), as severable from the other infrastructure elements and interprets section 110(k)(3) as allowing it to act on individual severable measures in a plan submission. In short, EPA believes that even if Florida had made a SIP submission for section 110(a)(2)(D)(i)(I) of the CAA for the 2010 1-hour SO2 NAAQS, which to date it has not, EPA would still have discretion under section 110(k) of the CAA to act upon the various individual elements of the State's infrastructure SIP submission, separately or together, as appropriate.

    The Commenter raises no compelling legal or environmental rationale for an alternate interpretation. Nothing in the Supreme Court's April 2014 decision in EME Homer City alters EPA's interpretation that EPA may act on individual severable measures, including the requirements of section 110(a)(2)(D)(i)(I), in a SIP submission. See EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (affirming a state's obligation to submit a SIP revision addressing section 110(a)(2)(D)(i)(I) independent of EPA's action finding significant contribution or interference with maintenance). In sum, the concerns raised by the Commenter do not establish that it is inappropriate or unreasonable for EPA to approve the portions of Florida's infrastructure SIP submission for the 2010 1-hour SO2 NAAQS.

    EPA has no obligation at this time to issue a FIP pursuant to 110(c)(1) to address Florida's obligations under section 110(a)(2)(D)(i)(I) until EPA first either finds Florida failed to make a required submission addressing the element or the State has made such a submission but it is incomplete, or EPA disapproves a SIP submission addressing that element. Until either occurs, EPA does not have the obligation to issue a FIP pursuant to section 110(c) with respect to the good neighbor provision. Therefore, EPA disagrees with the Commenter's contention that it must issue a FIP for Florida to address 110(a)(2)(D)(i)(I) for the 2010 1-hour SO2 NAAQS at this time.

    III. Final Action

    EPA is taking final action to approve Florida's infrastructure submissions submitted on June 3, 2013, and supplemented on January 8, 2014, for the 2010 1-hour SO2 NAAQS for the above described infrastructure SIP requirements. EPA is taking final action to approve Florida's infrastructure SIP submissions for the 2010 1-hour SO2 NAAQS because the submissions are consistent with section 110 of the CAA.

    IV. 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).

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

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 29, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: September 14, 2016. V. Anne Heard, Acting Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart K—Florida 2. Section 52.520(e), is amended by adding the entry “110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour SO2 National Ambient Air Quality Standards” at the end of the table to read as follows:
    § 52.520 Identification of plan.

    (e) * * *

    EPA-Approved Florida Non-Regulatory Provisions Provision State
  • effective date
  • EPA
  • approval date
  • Federal Register notice Explanation
    *         *         *         *         *         *         * 110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour Primary SO2 National Ambient Air Quality Standards 6/3/2013 9/30/2016 [Insert Federal Register citation] With the exception of section for provisions relating to 110(a)(2)(D)(i)(I) (prongs 1 and 2) concerning interstate transport requirements.
    [FR Doc. 2016-23292 Filed 9-29-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2015-0074; FRL-9953-14-Region 5] Air Plan Approval; Indiana; Temporary Alternate Opacity Limits for American Electric Power, Rockport AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving a revision to the Indiana State Implementation Plan (SIP), authorizing temporary alternate opacity limits (TAOLs) at the American Electric Power, Rockport (AEP Rockport) facility during periods of boiler startup and shutdown. This action is consistent with the Clean Air Act (CAA), the Indiana SIP, and EPA policy regarding emissions during periods of startup and shutdown. Indiana has provided an air quality analysis demonstrating that this revision will continue to protect the applicable National Ambient Air Quality Standards (NAAQS) for fine particulate matter (PM2.5) in Spencer County, Indiana.

    DATES:

    This final rule is effective on October 31, 2016.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2015-0074. 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 (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either through www.regulations.gov or at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Matt Rau, Environmental Engineer, at (312) 886-6524 before visiting the Region 5 office.

    FOR FURTHER INFORMATION CONTACT:

    Matt Rau, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6524, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

    I. What is the background for this action? II. What is EPA's response to comment? III. What action is EPA taking? IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. What is the background for this action?

    EPA is approving into the Indiana SIP TAOLs for AEP Rockport Units #1 and Unit #2, which apply only during narrowly-drawn periods of boiler startup and shutdown. These two identical 1,300-megawatt coal-fired boilers are each equipped with an electrostatic precipitator (ESP) to control PM2.5 emissions.

    More specifically, 326 Indiana Administrative Code (IAC) 5-1-8 authorizes AEP Rockport to exceed the applicable SIP opacity limit only under the following circumstances: (1) During startup, for a period not to exceed two hours (twenty six-minute averaging periods), or until the flue gas temperature reaches 250 degrees Fahrenheit at the ESP inlet, whichever occurs first; and (2) during shutdown, once the flue gas temperatures has dropped below 250 degrees Fahrenheit at the ESP inlet, for a period not to exceed one and one-half hours (fifteen six-minute averaging periods).

    EPA proposed to approve these alternate limits as revisions to Indiana SIP on December 28, 2015 (80 FR 80719). In this action, EPA is responding to comments submitted in response to its proposal and approving the AEP Rockport TAOLs. This is because they meet the criteria contained in Indiana SIP rule 326 IAC 5-1-3(d) as an appropriate method in determining alternative limits for facilities during startup and shutdown periods. These limits are also consistent with the CAA and applicable EPA policy. As discussed in EPA's proposal, AEP Rockport has met all of these criteria.

    EPA has also previously approved TAOLs for 22 other Indiana power plants, all of which are controlled with ESPs (67 FR 46589, July 16, 2002). These TAOLs contained similar limits, and EPA's basis for approval was analogous. The approach taken by Indiana in establishing all of these TAOLs is also consistent with section 110 of the CAA and the criteria contained in EPA's September 20, 1999 guidance, “State Implementation Plans: Policy Regarding Excess Emissions During Malfunctions, Startup, and Shutdown.”

    As discussed in the proposal, EPA has evaluated Continuous Opacity Monitoring System (COMS) data from the AEP Rockport facility and conducted air dispersion modeling in the surrounding area. The COMS data showed that, between 2009 and 2013, AEP's emissions were in compliance with the SIP opacity rule 99.81 percent of the time. Conversely, AEP's emissions exceeded the opacity standards just 0.19 percent of the time, which includes the startup and shutdown periods covered by the TAOL.

    After EPA received public comments in response to the proposal, the Indiana Department of Environmental Management (IDEM) performed an additional air quality analysis in response to specific comments. AEP provided a revised emission profile for PM describing hourly emissions during a 24-hour period, including a startup event, in which the ESP would be entirely shut down during hours 9 and 10. IDEM made the conservative assumption that all of the boilers' PM10 emissions were 100 percent PM2.5. The new analysis also considered two scenarios, in which one boiler is starting up while the other boiler is either not operating, or operating at its full, steady rate. Both boilers at Rockport exhaust through a common stack. The two scenarios represent the stack exhaust and dispersion rates for a boiler startup/shutdown event. IDEM modeled one scenario which assumed that the ESP is completely offline for the two hours of highest oil and coal combustion.

    IDEM's modeling followed EPA's guidance in 40 CFR part 51, appendix W, using the current version of the AERMOD modeling system, over a full receptor grid, with five years of recent surface meteorological data from Evansville, Indiana (2010-2014). IDEM also included background from the near-by Dale monitor, in response to Sierra Club comments. The modeling with the background results yielded a 24-hour PM2.5 value of 26.06 micrograms per cubic meter (μg/m3), which is well below the 2012 24-hour PM2.5 NAAQS of 35 μg/m3.

    II. What is EPA's response to comment?

    EPA received comment letters from AEP and the Sierra Club, both on January 27, 2016.

    The AEP comment letter supports the approval of 326 IAC 5-1-8 into the Indiana SIP. Sierra Club's comments are provided and addressed below.

    Comment: The commenter stated that the fact that AEP Rockport often does not meet applicable opacity limitations is not sufficient to demonstrate that it cannot meet these limits. The commenter asserts that there are numerous options that might be effective in reducing emissions during startup and shutdown periods, including revamping plant maintenance practices, installing baghouses after the ESPs to collect uncontrolled PM, and using a startup fuel other than fuel oil.

    Response: The TAOLs at AEP Rockport are needed during startup and shutdown because of temperature limitations of the ESP, which has lowered efficiency at times when temperatures are below 250 degrees. (See 67 FR 46589, July 16, 2002). In addition, AEP Rockport has provided data showing that during periods of low temperature when the control technology cannot efficiently control particulates, there may be violations of the SIP opacity limits. During normal operations, however, emission limits are met. The COMs data submitted by AEP Rockport demonstrate that it has operated in a manner consistent with good air pollution control and maintenance practices. The data show that, between 2009 and 2013, the facility was in compliance 99.81 percent of the time, and exceeded the opacity standards just 0.19 percent of the time. This includes the startup and shutdown periods covered by the TAOL.

    The commenter suggests that other control devices should be added to the facility, or that there should be a fuel switch. EPA disagrees for several reasons. First, considering additional controls or changes in fuel is not a criterion in the Indiana SIP for evaluating the approvability of a TAOL. In addition, even if AEP Rockport were to add or modify its control such as by adding a fabric filter (baghouse), similar technical issues could also occur during the low-temperature, low-flow scenario of startups and shutdowns.

    Comment: The commenter stated that the fact that AEP Rockport often meets applicable opacity limitations during startup and shutdown proves that it can meet these limits. To support this claim, the commenter cites opacity records from the facility on two specific dates in August 1999 in which the opacity did not exceed 40 percent during one startup event and one shutdown event. While conceding that these records also show violating emissions during startups and shutdowns on other occasions, the commenter further notes that the same records show that the facility was also able to comply with the opacity limits during startups and shutdowns as recently as last year.

    Response: Because AEP Rockport often meets its limits speaks to the fact that it currently operates the controls in a fashion that is consistent with the TAOL approval criterion of maintaining and operating controls in a way to minimize emissions. AEP Rockport's control system also operates effectively during normal operations, enabling it to meet its opacity limitations. As explained in EPA's proposal, the need for a TAOL occurs only during startup and shutdown periods—when ESP effectiveness is hampered by temperature (See 67 FR 46589, July 16, 2002).

    AEP Rockport's COM data from 2001 to 2004, and 2007 to 2013, indicate opacity exceedances during startup and shutdown periods, which shows this has been a long-running technical issue. EPA has also reviewed the opacity exceedance report summary for 2007 to 2013. It shows that AEP Rockport averaged 2 startups per year and 4.7 shutdowns per year that exceeded the opacity limitations.

    There are aspects of ESP operation that cannot be predicted or controlled during unit startups. Therefore, it is impractical to set an opacity limitation during startup and shutdown periods, particularly given the noted history of limited exceedances and the potential for more irregular opacity episodes. Given that EPA expects SIP compliance 100 percent of the time, the fact that a source may “often” meet applicable emission limits is not sufficient.

    Comment: The commenter stated that the air quality demonstration made in 2001 or 2004 is obsolete due to changing conditions that impact opacity compliance at the AEP Rockport. The commenter further asserted that the documents AEP submitted in support of its TAOL petition are outdated and fail to satisfy the requirements in 326 IAC 5-1-3-(d)(2)(B).

    Response: The requirements of 326 IAC 5-1-3(d)(2)(B) were fulfilled for the AEP Rockport facility with the information provided by Indiana in 2015. This is current information, as Indiana evaluated the AEP Rockport TAOLs in 2014. The current data for AEP Rockport show it operates in manner that minimizes opacity emissions during both normal operation and during startup and shutdown periods.

    AEP's updated COMs data, which reflects maintenance changes, upgrades, retrofits, or alterations at the facility, still records exceedances during some start-up and shutdown events during 2009 through 2013. This data which accounts for recent changes in conditions shows that there is an ongoing technical issue with the ESP temperature limitations during start-up and shutdowns that necessitates the TAOLs.

    Comment: The commenter stated that the 2004 modeling does not address the current NAAQS. The Indiana SIP requires the owner or operator to demonstrate the TAOL will not impact the maintenance of the NAAQS. The commenter asserted that AEP Rockport's 2004 demonstration is clearly inadequate in that it does not address subsequently-adopted PM NAAQS, because the demonstration did not address the 2012 24-hour and annual PM2.5 NAAQS.

    Response: The submission by Indiana contained both 2004 and updated 2013 modeling. The modeling provided to EPA for SIP approval included an analysis of both PM10 and PM2.5. The analysis used a conservative assumption that 100 percent of PM10 equals the PM2.5 concentrations emitted. EPA concurred with this analysis, which further showed that the TAOL would not interfere with the NAAQS for fine particulate matter.

    In addition, in response to the comment, Indiana performed and provided EPA with an updated AERMOD modeling analysis. The modeling shows that the PM2.5 NAAQS should remain protected in Spencer County, Indiana with the TAOLs in place. More specifically, the results yielded a 24-hour PM2.5 value of 26.06 μg/m3, which is well below the 24-hour PM2.5 NAAQS of 35 μg/m3. Indiana did not address the annual PM2.5 NAAQS, as the TAOL is only intended to address short-term situations. The 24-hour PM2.5 NAAQS protects public health in this scenario. EPA also considered the 2012 NAAQS, and evaluated modeled concentrations from the TAOLs, using an hourly value of 1.59 μg/m3 from the modeled scenario that would best represent a contribution to an annual average. EPA a determined that the modeled annual average combined with background concentrations (for current monitored data of 10.1 μg/m3 for 2013-2015 period, and 9.3 for the current annual period) would be less than the 2012 PM2.5 NAAQS of 12.0 μg/m3.

    Comment: The commenter stated that the 2004 modeling assumes PM emission will be controlled in ways the TAOL does not require. More specifically, AEP Rockport assumed that its ESPs would be partially energized and reducing particulate matter emissions, albeit at only 60 percent efficiency. Rockport's operating permit excuses it from running the ESPs during startup and shutdown. The emissions rate both Indiana and AEP Rockport used is based on the assumption that AEP Rockport will take steps to minimize opacity that are not required by law.

    Response: EPA believes that the modeling done in support of the TAOL is an appropriate representation of the impact of the TAOL on the NAAQS. The parameters used in the modeling are consistent with EPA SSM guidance and rules (see, e.g., 80 FR 33840), and reflect the operations at the facility, because Indiana has found through review of the reported data that AEP Rockport's ESP typically provides 75 percent control efficiency or more during startup.

    It should also be noted that AEP Rockport is subject to other rules that limit its emissions, such as the Mercury and Air Toxics (MATS) rule (40 CFR part 63, subpart UUUUU). Controlling PM emissions under the MATS rule will further limit the opacity from the AEP Rockport units. Indiana's analysis without ESP control still shows the air quality will be protected. Therefore, EPA believes that the assumption of 60 percent efficiency in the modeling is conservative, and shows that the NAAQS would be protected at a level well below the standard.

    Comment: The commenter stated that the 2013 modeling is unrealistic and retains flaws from the 2004 modeling. Some of the key modeling assumptions that Indiana used are unrealistic. These assumptions cut in both directions: Some overestimate air quality impact and some underestimate air quality impact. Indiana assumed that there was no background PM2.5 concentration. Indiana's justifications for using a zero background PM concentration do not withstand scrutiny. Assuming zero background concentration for PM2.5 produces an air quality modeling result that cannot be relied upon to show NAAQS compliance. The 2013 annual mean for PM2.5 at the Dale, Spencer County, Indiana monitor was 10.20 μg/m3. Indiana's modeling yielded an eighth high 24-hour PM2.5 value of 22 μg/m3. Even though the methodology for calculating these values is very different, adding them yields a total of 32.2 μg/m3.

    Response: The commenter notes in its own analysis that the modeling, with background concentration, still yield results that are below the standard of 35 μg/m3.

    The revised modeling analysis by Indiana addressed the concerns raised by the commenter. Background data was taken from the Dale monitor in Spencer County, Indiana. AEP Rockport is also in Spencer County, Indiana, about 20 miles from the Dale monitor. The latest three years of monitoring data from 2013-2015 were used. The background value of 23 μg/m3 does include the expected impact from AEP Rockport's startup and shutdown periods, as no adjustment to the data was made. Thus, both Indiana and EPA considered a conservative background concentration in their evaluations of the AEP Rockport TAOLs.

    Indiana's 2013 modeling is conservative in several additional ways. The dispersion modeling used averaged stack temperatures and flow rates in the startup process (which were not from the same hour the emissions value came from). Using the good engineering practice stack height of 220.7 m, instead of the actual 272.5 m stack height, also leads to a conservative estimate of dispersion and, therefore, conservatively high concentration results. The analysis used a cold-unit startup, which is expected to produce more opacity than a warm-unit startup. (A warm-unit startup is when the boiler is still warm, a scenario that could come from frequent startups and shutdowns.) Indiana used coarse particulate matter (PM10) emission rates in its modeling analysis, making the conservative assumption that those emissions were 100 percent PM2.5. Indiana compared the model result to the 24-hour PM2.5 standard and determined that the NAAQS were protected.

    A scenario considering two hours of uncontrolled emissions during startup gave a maximum concentration of 3.06 μg/m3. Adding in the background concentration yields a total value of 26.06 μg/m3. A second scenario was considered with one unit starting up while the other unit is in normal operation. This scenario yields a total concentration of 24.59 μg/m3. The higher stack temperature and greater flow rate increase the dispersion characteristics leading to the lower concentration. Thus, the first scenario provides a worst-case analysis with a background concentration and no ESP operation during startup, and it still demonstrates attainment of the 24-hour PM2.5 NAAQS.

    Comment: The commenter stated that Indiana has not demonstrated that this TAOL is needed and justifiable, as required by 326 IAC 5-1-3(d)(2). The commenter noted that the Indiana SIP requires the owner to demonstrate that a particular TAOL is needed and justifiable during periods of startup and shutdown. The TAOL should be narrowly tailored and all steps must be taken to minimize emissions during startup and shutdown.

    Response: The criteria for demonstrating that a TAOL is needed and justifiable are provided in SIP rule 326 IAC 5-1-3(d)(2). As discussed above, the need in this case is supported by both the COMs data showing exceedances and the limitations of the technology due to low temperatures specific to startup and shutdown.

    The AEP Rockport TAOLs also meet the criteria contained in EPA's SSM guidance and rules (see, e.g., 80 FR 33840). The TAOLs are narrowly tailored, as they apply only to Rockport Unit 1 and Unit 2. They also align the previously approved Indiana TAOLs as it is a coal-fired utility boiler controlled with an ESP. The data provided on previous startups and shutdowns for both units indicated the TAOLs were set properly to minimize emissions during startup and shutdown. AEP Rockport has satisfied the criteria for approval. Further, the AEP Rockport startup and shutdown TAOLs are consistent with the previously approved TAOLs at other similar Indiana facilities (See 67 FR 46589, July, 16, 2002). The TAOLs for AEP Rockport were also tailored specifically to the facility using monitored COM data to determine opacity limits that were appropriate given the operational limitations of the specific parameters on the ESP for AEP Rockport. AEP Rockport has demonstrated that the PM2.5 NAAQS and thus the area's air quality will remain protected. The reports on the startups and shutdown do show the periods when the current opacity limitations are exceeded occurred during 14 startups and 33 shutdowns from 2007 to 2013, which is an average of 2.0 startup and 4.7 shutdown exceedances per year. Just one startup (2.1 hours) and two shutdowns (1.7 and 2.0 hours) during 2007 to 2013 exceeded the proposed TAOLs.

    The air quality analysis of the TAOLs shows that the 24-hour PM2.5 NAAQS is protected, and EPA's analysis of the annual standard based on the modeling provided supports that the annual PM2.5 standard is protected. Compliance with this standard protects the public health from short-term events such as startups and shutdowns.

    Comment: The proposed TAOLs include no upper limits on opacity during the specified timeframe. As such, they could potentially allow extremely high opacity scenarios. There is no concrete restriction on how many times AEP Rockport may startup or shutdown each unit in a year, or even in a week. The combination of these two events raises the potential for serious impacts on ambient air quality.

    AEP Rockport has not demonstrated it requires a wholesale exemption from numerical opacity limits when the TAOL would apply. None of the opacity records show opacity reaching levels near 100 percent for two hours during a startup. AEP assumed the ESPs would run at 60 percent efficiency before the flue gas temperature reaches 250 °F. Furthermore, AEP Rockport claimed that 60 percent control efficiency was a low estimate. If true, that means AEP Rockport could partially control its opacity during the startup and shutdown periods. The TAOLs simply grants AEP Rockport an unneeded, unjustified free pass during the specified time period.

    Response: EPA agrees that the data indicates opacity does not approach 100 percent opacity. The opacity readings vary in time and opacity level, which makes setting numerical opacity limitations impractical. While there is not a percent opacity limit, the TAOL does provide meaningful constraints of time and temperature that the facility must follow that limits the emissions during startup and shutdowns. The TAOL for unit startup is only allowed until the exhaust temperature reaches 250 °F at the ESP inlet, up to a maximum of 20 six-minute averaging periods (2 hours). The TAOL for unit shutdown begins when the exhaust temperature declines below 250 °F at the ESP inlet and goes for up to 15 six-minute averaging periods (1.5 hours).

    III. What action is EPA taking?

    EPA is approving the addition of the AEP Rockport TAOL to 326 IAC 5-1-8 to the Indiana SIP. The rule provides AEP Rockport Units #1 and Unit #2 with TAOLs under certain circumstances during unit startup and shutdown periods. All available data support that the AEP Rockport TAOLs are set at an appropriate level. The AEP Rockport TAOLs meet the requirements of 326 IAC 5-1-3(d)(2). The AEP Rockport TAOLs also meet the other requirements of 326 IAC 5-1-3(d), as approved into the Indiana SIP.

    This action is consistent with the CAA, the Indiana SIP, and EPA policy regarding emissions during periods of startup and shutdown. Indiana has provided an air quality analysis demonstrating that the PM2.5 NAAQS in Spencer County should continue to be protected with the revision.

    IV. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Indiana Regulations described in the amendments to 40 CFR part 52 set forth below. Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1 EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or at the EPA Region 5 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).

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

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

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

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

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

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

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

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

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

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

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this 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 29, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

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

    Dated: September 19, 2016. Robert A. Kaplan, Acting Regional Administrator, Region 5.

    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.

    2. In § 52.770 the table in paragraph (c) is amended by adding an entry under “Article 5. Opacity Regulations” “Rule 1. Opacity Limitations” for 5-1-8 in numerical order to read as follows:
    § 52.770 Identification of plan.

    (c) * * *

    EPA-Approved Indiana Regulations Indiana citation Subject Indiana
  • effective
  • date
  • EPA approval date Notes
    *         *         *         *         *         *         * Article 5. Opacity Regulations Rule 1. Opacity Limitations *         *         *         *         *         *         * 5-1-8 Site-specific temporary alternate opacity limitations 12/6/2014 9/30/2016, [insert Federal Register citation] *         *         *         *         *         *         *
    [FR Doc. 2016-23296 Filed 9-29-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 97 [EPA-HQ-OAR-2015-0500; FRL-9953-30-OAR] Availability of Data on Allocations of Cross-State Air Pollution Rule Allowances to Existing Electricity Generating Units AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule; notice of data availability (NODA).

    SUMMARY:

    Under the Cross-State Air Pollution Rule (CSAPR) trading program regulations, the EPA allocates emission allowances to existing electricity generating units (EGUs) as provided in a notice of data availability (NODA). In the CSAPR Update promulgated earlier this year, the EPA finalized default allocations of CSAPR NOX Ozone Season Group 2 allowances for the control periods in 2017 and subsequent years to existing EGUs in 22 eastern states for which the EPA finalized Federal Implementation Plans (FIPs)—Alabama, Arkansas, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Mississippi, Missouri, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, Virginia, West Virginia, and Wisconsin. Through this NODA, the EPA is providing notice of the availability of data on these allowance allocations to existing units, as well as the data upon which the allocations are based.

    DATES:

    September 30, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Questions concerning this notice should be addressed to Michael Cohen, at (202) 343-9497 or [email protected]; or Robert Miller, at (202) 343-9077 or [email protected] The mailing address for each of these individuals is U.S. Environmental Protection Agency, Clean Air Markets Division, MC 6204M, 1200 Pennsylvania Avenue NW., Washington, DC 20460.

    SUPPLEMENTARY INFORMATION:

    The CSAPR allowance trading programs require affected EGUs to hold emission allowances sufficient to cover their emissions of nitrogen oxides (NOX) and/or sulfur dioxide in each control period. In the CSAPR Update for the 2008 ozone National Ambient Air Quality Standards (NAAQS), the EPA established new emissions budgets for ozone season NOX emissions in 2017 and subsequent years for 22 eastern states and promulgated FIP provisions requiring affected EGUs in those states to participate in the CSAPR NOX Ozone Season Group 2 Trading Program.1 Beginning with the 2018 control period, each covered state generally has the option to determine how the CSAPR NOX Ozone Season Group 2 allowances in its state emissions budget should be allocated among the state's EGUs through a State Implementation Plan (SIP) revision.2 However, for the 2017 control period, and by default for subsequent control periods in situations where a state has not provided the EPA with the state's own allocations pursuant to an approved SIP revision, the allocations are made by the EPA.

    1See Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS (September 7, 2016), available at https://www.epa.gov/airmarkets/final-cross-state-air-pollution-rule-update.

    2See 40 CFR 52.38 and 52.39.

    In the case of units that commenced commercial operations before January 1, 2015, termed “existing” units for purposes of this trading program, the EPA determined default allocations for all control periods in the CSAPR Update rulemaking, according to a methodology finalized in the rulemaking but not included in the regulatory text.3 Through this NODA, the EPA is providing notice of the availability of unit-level default allocations of CSAPR NOX Ozone Season Group 2 allowances for EGUs that commenced commercial operation before January 1, 2015, as required by the CSAPR regulations.4 The data are contained in an Excel spreadsheet titled “Unit-Level Allocations and Underlying Data for the CSAPR Update for the 2008 Ozone NAAQS” that is included in the docket for the CSAPR Update final rule and has been posted on the EPA's Web site at https://www.epa.gov/airmarkets/final-cross-state-air-pollution-rule-update. The spreadsheet contains the default allocations of allowances for each control period starting with 2017. For EGUs in all covered states except Arkansas, the unit-level allocations in the spreadsheet are the same for each year. For EGUs in Arkansas, the unit-level allocations for many EGUs are higher for the 2017 control period because Arkansas' 2017 ozone season NOX emissions budget is higher than its emissions budget for the control period in 2018 and subsequent years. The spreadsheet also contains the data used to compute the allocations and describes how the computations are performed. The EPA is not requesting comment on the allocations, underlying data, or allocation methodology.

    3See CSAPR Allowance Allocations Final Rule TSD, available at https://www.epa.gov/airmarkets/final-cross-state-air-pollution-rule-update.

    4See 40 CFR 97.811(a)(1). The approach of allocating emission allowances to existing EGUs as provided in a NODA was established in the original CSAPR and was unchanged in the CSAPR Update. See, e.g., 40 CFR 97.511(a)(1).

    The EPA notes that an allocation or lack of allocation of emission allowances to a given EGU does not constitute a determination that CSAPR does or does not apply to the EGU.5 The EPA also notes that allocations are subject to potential correction under the rule.6

    5See 40 CFR 97.811(a)(1).

    6See 40 CFR 97.811(c).

    In accordance with the allowance recordation deadlines set forth in the regulations, the EPA will record allocations of CSAPR NOX Ozone Season Group 2 allowances to existing units for the 2017 control period by January 3, 2017 (the first business day after January 1, 2017).7 The EPA will also record allocations for the 2018 control period by that same date except in instances where a state has provided the EPA with timely notice of the state's intent to submit a SIP revision with state-determined allowance allocations replacing the EPA's default allocations for the 2018 control period.8

    7See 40 CFR 97.821(a).

    8See 40 CFR 52.38(b)(7) and 97.821(b).

    For units commencing commercial operation on or after January 1, 2015, termed “new” units for purposes of the CSAPR NOX Ozone Season Group 2 Trading Program, the EPA's default allocations for each control period are annually determined during and after the control period based on current and prior year emission data, using a methodology set out in the regulatory text.9

    9See 40 CFR 97.812.

    Dated: September 22, 2016. Reid P. Harvey, Director, Clean Air Markets Division.
    [FR Doc. 2016-23434 Filed 9-29-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 435 [EPA-HQ-OW-2016-0598; FRL-9953-26-OW] RIN 2040-AF68 Effluent Limitations Guidelines and Standards for the Oil and Gas Extraction Point Source Category—Implementation Date Extension AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to extend the implementation deadline for certain facilities subject to the final rule establishing pretreatment standards under the Clean Water Act (CWA) for discharges of pollutants into publicly owned treatment works (POTWs) from onshore unconventional oil and gas (UOG) extraction facilities (81 FR 41845; June 28, 2016). EPA is making this revision in response to new information suggesting that there are likely facilities subject to the final rule not presently meeting the zero discharge requirements in the final rule.

    DATES:

    This direct final rule is effective on November 29, 2016 without further notice, unless EPA receives adverse comment by October 31, 2016. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that the direct final rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. [EPA-HQ-OW-2016-0598], 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 https://www.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    For more information, see EPA's Web site: https://www.epa.gov/eg/unconventional-oil-and-gas-extraction-effluent-guidelines. For technical information, contact Karen Milam, Engineering and Analysis Division (4303T), Office of Water, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone: 202-566-1915; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Does this action apply to me?

    Entities potentially regulated by this final action include:

    Category Example of regulated entity North American Industry
  • Classification System (NAICS) code
  • Industry Crude Petroleum and Natural Gas Extraction 211111 Industry Natural Gas Liquid Extraction 211112
    II. Why is EPA issuing a direct final rule?

    EPA is publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. This direct final rule merely extends the implementation deadline for existing onshore UOG extraction facilities that were discharging to POTWs on or between the date of the Federal Register Notice of the proposed rule (April 7, 2015) and the date of the Federal Register Notice of the final rule (June 28, 2016) to the default three year period provided in the General Pretreatment Regulations. This direct final rule does not otherwise amend the final pretreatment standards rule in any way. In the “Proposed Rules” section of today's Federal Register, however, we are publishing a separate document that will serve as the proposed rule to extend the implementation date if we receive adverse comments on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this direct final rule, see the ADDRESSES section of this document.

    If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We would address all public comments in any subsequent final rule based on the proposed rule.

    III. Supplementary Information A. Background

    EPA promulgated revisions to Effluent Guidelines and Standards for the Oil and Gas Extraction Point Source Category which established pretreatment standards for onshore unconventional oil and gas extraction facilities (81 FR 41845, June 28, 2016). In this final rule, EPA established pretreatment standards prohibiting the discharge of pollutants in UOG extraction wastewater to POTWs, and established an effective date of August 29, 2016. In the preamble to the final rule, EPA indicated that because UOG facilities were currently meeting this zero discharge requirement, the implementation deadline for these pretreatment standards would be the same as the effective date of the final rule. After promulgation of the final rule, EPA received two letters indicating that there are likely facilities discharging UOG wastewater to POTWs; this is new information to EPA.

    B. Description of EPA's Action

    Based on this post-promulgation information submitted to EPA suggesting that there are likely facilities subject to the final pretreatment standards rule that are currently discharging UOG wastewater to POTWs, EPA is extending the implementation deadline for existing sources that were lawfully discharging to POTWs on or between April 7, 2015 and June 28, 2016 to three years from the effective date of the rule—to August 29th, 2019. This direct final rule does not change the compliance date for all other facilities subject to the final onshore UOG extraction pretreatment standards rule. The final pretreatment standards did not specify a compliance date in the regulatory text; rather, EPA included a compliance date equal to the effective date of the rule in the preamble to the rule, based on the Agency's record indicating that no facilities were discharging UOG wastewater to POTWs. Because of post-promulgation information indicating that some facilities are likely discharging UOG wastewater to POTWs, EPA is extending the compliance date for these facilities. EPA notes that specifying a compliance date of three years from the effective date of the final pretreatment standards rule is consistent with EPA's General Pretreatment Regulations, which require existing sources to meet categorical pretreatment standards within three years of the effective date of such standards, unless a shorter compliance time is specified therein. 40 CFR 403.6(b). For purposes of this direct final rule, compliance date and implementation date are used interchangeably.

    EPA will not consider any comment submitted on the direct final rule published today on any topic other than the appropriateness of an extension of the compliance date; any other comments will be considered to be outside the scope of this rulemaking.

    IV. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) and Executive Order 13563 (76 FR 3821, January 21, 2011), this action is not a “significant regulatory action” and is therefore not subject to OMB review. With respect to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), this action will not have a significant economic impact on a substantial number of small entities—as this direct final relieves regulatory burden by extending the compliance date for any business (including small businesses) that were discharging UOG wastewater to POTWs at the time of issuance of the pretreatment standard. For the Sections 202 and 205 of the Unfunded Mandates Reform Act of 1999 (UMRA) (Pub. L. 104-4), this action does not significantly or uniquely affect small governments. The action imposes no incremental enforceable duty on any state, local or tribal governments or the private sector. This action does not create new binding legal requirements that substantially and directly affect Tribes under Executive Order 13175 (65 FR 67249, November 9, 2000). This action does not have significant Federalism implications under Executive Order 13132 (64 FR 43255, August 10, 1999). Because this final rule has been exempted from review under Executive Order 12866, this final rule is not subject to Executive Order 13211, entitled Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). This final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., nor does it require any special considerations under Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994). This action does not involve technical standards; thus, the requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

    Congressional Review Act

    This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    List of Subjects in 40 CFR Part 435

    Environmental protection, Pretreatment, Waste treatment and disposal, Water pollution control, Unconventional oil and gas extraction.

    Dated: September 22, 2016. Gina McCarthy, Administrator.

    Therefore, 40 CFR part 435 is amended as follows:

    PART 435—OIL AND GAS EXTRACTION POINT SOURCE CATEGORY 1. The authority citation for part 435 continues to read as follows: Authority:

    33 U.S.C. 1251, 1311, 1314, 1316, 1317, 1318, 1342 and 1361.

    Subpart C—Onshore Subcategory 2. Add paragraph (a)(3) to § 435.33 to read as follows:
    § 435.33 Pretreatment standards for existing sources (PSES).

    (a) * * *

    (3) Compliance deadline for existing sources. Existing sources lawfully discharging into publicly owned treatment works on or between April 7, 2015 and June 28, 2016 shall comply with the PSES by August 29, 2019. All other existing sources shall comply by August 29, 2016.

    [FR Doc. 2016-23456 Filed 9-29-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R3-ES-2015-0145; 4500030113] RIN 1018-BA98 Endangered and Threatened Wildlife and Plants; Threatened Species Status for the Eastern Massasauga Rattlesnake AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Final rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), determine threatened species status under the Endangered Species Act of 1973 (Act), as amended, for the eastern massasauga rattlesnake (Sistrurus catenatus), a rattlesnake species found in 10 States and 1 Canadian Province. The rule adds this species to the Federal List of Endangered and Threatened Wildlife. We have also determined that the designation of critical habitat for the eastern massasauga rattlesnake is not prudent due to an increased risk of collection and persecution.

    DATES:

    This rule is effective October 31, 2016.

    ADDRESSES:

    This final rule is available on the Internet at http://www.regulations.gov and http://www.fws.gov/midwest/endangered/reptiles/eama/index.html. 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 or by appointment, during normal business hours at: U.S. Fish and Wildlife Service, Chicago Ecological Services Field Office, 230 South Dearborn, Suite 2938, Chicago, IL 60604; telephone 312-216-4720.

    FOR FURTHER INFORMATION CONTACT:

    Louise Clemency, Field Supervisor, U.S. Fish and Wildlife Service, Chicago Ecological Services Field Office, 230 South Dearborn, Suite 2938, Chicago, IL 60604; telephone 312-216-4720. 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 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 species or threatened species can only be completed by issuing a rule. Additionally, under the Act, critical habitat shall be designated, to the maximum extent prudent and determinable, for any species determined to be an endangered species or threatened species under the Act. We have determined that designating critical habitat is not prudent for the eastern massasauga rattlesnake due to an increased risk of collection and persecution.

    This rule makes final the listing of the eastern massasauga rattlesnake (Sistrurus catenatus) as a threatened species.

    The basis for our action. Under the Act, we can 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. Although there are several factors that are affecting the eastern massasauga rattlesnake's status, the loss of habitat was historically, and continues to be, the primary threat, either through development or through changes in habitat structure due to vegetative succession.

    Peer review and public comment. A Species Status Assessment (SSA) team prepared an SSA report (Szymanski et al. 2016) for the eastern massasauga rattlesnake. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA represents a compilation of the best available scientific and commercial data concerning the biological status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the eastern massasauga rattlesnake. We sought comments on the SSA 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 comments and information we received during the comment period.

    The SSA report underwent independent peer review by 21 scientists with expertise in eastern massasauga rattlesnake biology, habitat management, and stressors (factors negatively affecting the species) to the species. The SSA report and other materials relating to this determination can be found on the Midwest Region Web site at http://www.fws.gov/midwest/Endangered/ and at http://www.regulations.gov under Docket No. FWS-R3-ES-2015-0145.

    Previous Federal Actions

    On September 30, 2015, the Service published a proposed rule (80 FR 58688) to list the eastern massasauga rattlesnake as a threatened species under the Act (16 U.S.C. 1531 et seq.). We accepted public comments on the proposed rule for 60 days, ending November 30, 2015. Please refer to the proposed rule (80 FR 58688; September 30, 2015) for a detailed description of previous Federal actions concerning this species.

    Background

    Please refer to the proposed listing rule (80 FR 58688; September 30, 2015) for a summary of species information.

    Summary of Biological Status and Threats

    The Act directs us to determine whether any species is an endangered species or a threatened species because of any factors affecting its continued existence. We completed a comprehensive assessment of the biological status of the eastern massasauga rattlesnake, and prepared the SSA report, which provides a thorough description of the species' overall viability. We generally defined viability as the ability of the species to maintain self-sustaining populations over the long term. We used the conservation biology principles of resiliency, representation, and redundancy in our analysis. Briefly, resiliency is the ability of the species to withstand environmental stochasticity (unpredictable fluctuations in environmental conditions (for example, wet or dry, warm or cold years)); redundancy is the ability of the species to withstand catastrophic events (for example, droughts, hurricanes); and representation is the ability of the species to adapt over time to long-term changes in the environment (for example, climate changes). In general, the more redundant, representative, and resilient a species is, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we considered the eastern massasauga rattlesnake's needs at the individual, population, and species scales. We also identified the beneficial factors and stressors influencing the species' viability. We considered the degree to which the species' ecological needs are met both currently and as can be reliably forecasted into the future, and we assessed the consequences of any unmet needs as they relate to species viability. In this section, we summarize the conclusions of the SSA, which can be accessed in the SSA report at http://www.fws.gov/midwest/Endangered/ and at http://www.regulations.gov under Docket No. FWS-R3-ES-2015-0145.

    For survival and reproduction at the individual level, the eastern massasauga rattlesnake requires appropriate habitat, which varies depending on the season and its life stage (see Background section of the proposed listing rule at 80 FR 58688, September 30, 2015). During the winter (generally October through March), they occupy hibernacula, such as crayfish burrows. Hydrology at eastern massasauga rattlesnake sites is important in maintaining conditions with high enough water levels to support the survival of hibernating eastern massasauga rattlesnakes. During their active season (after they emerge from hibernacula), they require sparse canopy cover and sunny areas (intermixed with shaded areas) for thermoregulation (basking and retreat sites), abundant prey (foraging sites), and the ability to escape predators (retreat sites). Habitat structure, including early successional stage and low canopy cover, appears to be more important for eastern massasauga rattlesnake habitat than plant community composition or soil type. Maintaining such habitat structure may require periodic management of most habitat types occupied by the eastern massasauga rattlesnake.

    At the population level, the eastern massasauga rattlesnake requires sufficient population size, population growth, survivorship (the number of individuals that survive over time), recruitment (adding individuals to the population through birth or immigration), and population structure (the number and age classes of both sexes) to be sustainable over the long term. Populations also require a sufficient quantity of high-quality microhabitats with intact hydrological and ecological processes that maintain suitable habitat, and connectivity among these microhabitats. In the SSA report, a self-sustaining population of eastern massasauga rattlesnakes is defined as one that is demographically, genetically, and physiologically robust (a population with 50 or more adult females and a stable or increasing growth rate), with a high level of persistence (a probability of persistence greater than 0.9) given its habitat conditions and the risk or beneficial factors operating on it.

    We relied on a population-specific model developed by Faust et al. (2011, entire) (hereafter referred to as the Faust model) to assess the health of populations across the eastern massasauga rattlesnake's range. Faust and colleagues developed a generic, baseline model for a hypothetical, healthy (growing) eastern massasauga rattlesnake population. Using this baseline model and site-specific information, including population size estimate, stressors operating at the site, and potential future management changes that might address those stressors, the Faust model forecasted the future condition of 57 eastern massasauga rattlesnake populations over three different time spans (10, 25, and 50 years) (for more details on the Faust model, see pp. 4-6 in the SSA report). We extrapolated the Faust model results and supplemental information gathered since 2011 to forecast the future conditions of the other (non-modeled; n = 290) eastern massasauga rattlesnake populations.

    At the species level, the eastern massasauga rattlesnake requires multiple (redundant), self-sustaining (resilient) populations distributed across areas of genetic and ecological diversity (representative) to be sustainable over the long term. Using the literature on distribution of genetic diversity across the range of this species, we identified three geographic “analysis units” corresponding to “clumped” genetic variation patterns across the eastern massasauga rattlesnake populations (see Figure 1, below). A reasonable conclusion from the composite of genetic studies that exist (Gibbs et al. 1997, entire; Andre 2003, entire; Chiucchi and Gibbs 2010, entire; Ray et al. 2013, entire) is that there are broad-scale genetic differences across the range of the eastern massasauga rattlesnake, and within these broad units, there is genetic diversity among populations comprising the broad units. Thus, we interpret these genetic variation patterns to represent areas of unique adaptive diversity. We subsequently use these analysis units (western, central, and eastern) to structure our analysis of viability with regards to representation.

    Species' Current Condition

    The documented historical range of the eastern massasauga rattlesnake included sections of western New York, western Pennsylvania, southeastern Ontario, the upper and lower peninsulas of Michigan, the northern two-thirds of Ohio and Indiana, the northern three-quarters of Illinois, the southern half of Wisconsin, extreme southeast Minnesota, east-central Missouri, and the eastern third of Iowa. The limits of the current range of the species resemble the boundaries of its historical range; however, the geographic distribution of extant localities has been restricted by the loss of populations from much of the area within the boundaries of that range. As a result of the stressors acting on eastern massasauga rattlesnake populations, the resiliency of the eastern massasauga rattlesnake across its range and within each of the three analysis units has declined from its historically known condition. Rangewide, there are 558 known historical eastern massasauga rattlesnake populations, of which 263 are known to still be extant, 211 are likely extirpated or known extirpated, and 84 are of unknown status. For the purposes of our assessment, we considered all populations with extant or unknown statuses to be currently extant (referred to as presumed extant, n = 347). Of those 347 populations presumed extant, 40 percent (n = 139) are likely quasi-extirpated (have 25 or fewer adult females, which was considered by the Faust model to be too small to be viable (see the SSA report, pp. 46-47, for details)).

    The rangewide number of presumed extant populations has declined from the number that was known historically by 38 percent (and 24 percent of the presumed extant populations have unknown statuses). Of those populations presumed extant, 139 (40 percent) are presumed to be quasi-extirpated while 105 (30 percent) are presumed to be demographically, genetically, and physiologically robust (see Table 1, below). Of these presumed demographically, genetically, and physiologically robust populations, 19 (0.5 percent of the presumed extant populations) are presumed to have conditions (stressors affecting the species at those populations are nonexistent or of low impact) suitable for maintaining populations over time and, thus, are self-sustaining. The greatest declines in resiliency occurred in the western analysis unit, where only 20 populations are presumed extant, and, of these, only 1 population is presumed to be self-sustaining. Loss of resiliency has also occurred, although to a lesser degree, in the central and eastern analysis units, where only 23 and 6 populations, respectively, are presumed to be self-sustaining.

    Table 1—The Number of Populations by Status Rangewide [DGP = demographically, genetically, and physiologically] Status Number of populations rangewide Percentage
  • of presumed
  • extant populations
  • Presumed Extant 347 Quasi-extirpated 139 40 DGP robust 105 30 Self-sustaining 19 0.5

    The degree of representation, as measured by spatial extent of occurrence (a measurement of the spatial spread of the areas currently occupied by a species), across the range of the eastern massasauga rattlesnake has declined, as illustrated by the higher proportion of populations lost in the southern and western part of the range and by the loss of area occupied within the analysis units (see Figure 1, below; see also pp. 52-55 in the SSA report). Overall, there has been more than a 41 percent reduction of extent of occurrence (as measured by a reduction in area) rangewide (see Table 2, below). This loss has not been uniform, with the western analysis unit encompassing most of this decline (70 percent reduction in extent of occurrence in the western analysis unit). However, losses of 33 percent and 26 percent of the extent of occurrence in the central analysis unit and eastern analysis unit, respectively, are notable as well. The results are not a true measure of area occupied by the species, but rather a coarse evaluation to make relative comparison among years. The reasons for this are twofold: (1) The calculations are done at the county, rather than the population, level; and (2) if at least one population was projected to be extant, the entire county was included in the analysis, even if other populations in the county were projected to be extirpated. Assuming that the loss of extent of occurrence equates to loss of adaptive diversity, the degree of representation of the eastern massasauga rattlesnake has declined since historical conditions.

    ER30SE16.026 Table 2—The Percent Reduction in Extent of Occurrence From Historical to Present Day Analysis unit Percent
  • reduction
  • Western 70 Central 33 Eastern 26 Rangewide 41

    The redundancy of the eastern massasauga rattlesnake has also declined since historical conditions. We evaluated the effects of potential catastrophic drought events on the eastern massasauga rattlesnake. Extreme fluctuations in the water table may negatively affect body condition for the following active season, cause early emergence, or cause direct mortality (Harvey and Weatherhead 2006, p. 71; Smith 2009, pp. vii, 33, 38-39). Changes in water levels under certain circumstances can cause mortality to individuals, particularly during hibernation (Johnson et al. 2000, p. 26; Kingsbury 2002, p. 38), when the snakes are underwater. The water in the hibernacula protects the eastern massasauga rattlesnake from dehydration and freezing, and, therefore, dropping water levels in the winter leaves the snakes vulnerable to both (Kingsbury 2002, p. 38; Moore and Gillingham 2006, p. 750; Smith 2009, p. 5). Because individual eastern massasauga rattlesnakes often return to the same hibernacula year after year, dropping water levels in hibernacula could potentially decimate an entire population if the majority of individuals in that population hibernate in the same area.

    We assessed the vulnerability of unit-wide extirpation due to varying drought intensities, as summarized below (for a detailed description of the analysis, see the SSA report, pp. 55-60, 81-82). The Drought Monitor (a weekly map of drought conditions that is produced jointly by the National Oceanic and Atmospheric Administration, the U.S. Department of Agriculture, and the National Drought Mitigation Center (NDMC) at the University of Nebraska-Lincoln) classifies general drought areas by intensity, with D1 being the least intense drought and D4 being the most intense drought. For the eastern massasauga rattlesnake, the risk of unit-wide extirpation due to a catastrophic drought varies by analysis unit and by the level of drought considered. Experts believe drought intensities of magnitude D2 or higher are likely to make the species more vulnerable to overwinter mortality and cause catastrophic impacts to eastern massasauga rattlesnake populations. In the central and eastern analysis units, the annual frequency rate for a D3 or D4 drought is zero, so there is little to no risk of unit-wide extirpation regardless of how broadly dispersed the species is within the unit. In the eastern analysis unit, the annual frequency rate for a D2 drought is also zero. Portions of the central analysis unit are at risk of a D2-level catastrophic drought; populations in the southern portion of the central analysis unit and scattered portions in the north are at risk from such a drought. In the western analysis unit, the risk of unit-wide extirpation based on the frequency of a D3 drought is low, but the risk of losing clusters of populations within the western analysis unit is notable; 5 of the 8 population clusters are vulnerable to a catastrophic drought. The probability of unit-wide extirpation in the western analysis unit is notably higher with D2 frequency rates; 7 of the 8 clusters of populations are at risk of D2-level catastrophic drought. Thus, the probability of losing most populations within the western analysis unit due to a catastrophic drought is high (0.82 probability of unit-wide extirpation).

    Assessment of Threats and Conservation Measures

    The most prominent stressors affecting the eastern massasauga rattlesnake include habitat loss and fragmentation, especially through development and vegetative succession; road mortality; hydrologic alteration (hydrologic drawdown) resulting in drought or artificial flooding; persecution; collection; and mortality of individuals as a result of habitat management that includes post-emergent (after hibernation) prescribed fire and mowing for habitat management. Habitat loss includes direct habitat destruction of native land types (for example, grassland, swamp, fen, bog, wet prairie, sedge meadow, marshland, peatland, floodplain forest, coniferous forest) due to conversion to agricultural land, development, and infrastructure associated with development (roads, bridges). Because eastern massasauga rattlesnake habitat varies seasonally and also varies over its range, the destruction of parts of a population's habitat (for example, hibernacula or gestational sites) may cause a negative effect to individual snakes, thus reducing the numbers of individuals in a population and, in turn, reducing the viability of that population. Habitat is also lost due to invasion of nonnative plant species, dam construction, fire suppression, manipulation of ground water levels, and other incompatible habitat modifications (Jellen 2005, p. 33). These habitat losses continue even in publicly held areas protected from development.

    Vegetative succession is a major contributor to habitat loss of the eastern massasauga rattlesnake (Johnson and Breisch 1993, pp. 50-53; Reinert and Buskar 1992, pp. 56-58). The open vegetative structure, typical of eastern massasauga rattlesnake habitat, provides the desirable thermoregulatory areas, increases prey densities by enhancing the growth of sedges and grasses, and provides retreat sites. Degradation of eastern massasauga rattlesnake habitat typically happens through woody vegetation encroachment or the introduction of nonnative plant species. These events alter the structure of the habitat and make it unsuitable for the eastern massasauga rattlesnake by reducing and eventually eliminating thermoregulatory and retreat areas. Fire suppression has promoted vegetative succession and led to the widespread loss of open canopy habitats through succession (Kingsbury 2002, p. 37). Alteration in habitat structure and quality can also affect eastern massasauga rattlesnakes by reducing the forage for the species' prey base (Kingsbury 2002, p. 37).

    Roads, bridges, and other structures constructed in eastern massasauga rattlesnake habitat fragment the snakes' habitat and impact the species both through direct mortality as snakes are killed trying to cross these structures (Shepard et al. 2008b, p. 6), as well as indirectly through the loss of access to habitat components necessary for the survival of the snakes.

    Because of the fear and negative perception of snakes, many people have a low interest in snakes or their conservation and consequently large numbers of snakes are deliberately killed (Whitaker and Shine 2000, p. 121; Alves et al. 2014, p. 2). Human-snake encounters frequently result in the death of the snake (Whitaker and Shine 2000, pp. 125-126). Given the species' site fidelity and ease of capture once located, the eastern massasauga rattlesnake is particularly susceptible to collection. Poaching and unauthorized collection of the eastern massasauga rattlesnake for the pet trade is a factor contributing to declines in this species (for example, Jellen 2005, p. 11; Baily et al. 2011, p. 171).

    Assessing the occurrence of the above-mentioned stressors, we found that 94 percent of the presumed extant eastern massasauga rattlesnake populations have at least one stressor (with some degree of impact on the species) currently affecting the site. Habitat loss or modification is the most commonly occurring stressor (see Figure 2, below). Some form of habitat loss or modification is occurring at 55 percent of the sites; 3 percent of these sites are at risk of total habitat loss (all habitat at the site being destroyed or becoming unusable by the species). Fragmentation is the second most common factor (49 percent of sites), and unmanaged vegetative succession is the third most common factor (31 percent of sites). Among the other stressors, road mortality occurs at 20 percent, collection or persecution at 17 percent, water fluctuation at 7 percent, and pre- or post-emergent fire at less than 1 percent of the sites.

    ER30SE16.027

    We also considered the magnitude of impact of the various stressors (see Figure 3, below). The Faust model indicates that the stressors most likely to push a population to quasi-extirpation within 25 years (high magnitude stressors) are late-stage vegetative succession, high habitat fragmentation, moderate habitat fragmentation, total habitat loss, and moderate habitat loss or modification. Our analysis shows that 84 percent of eastern massasauga rattlesnake populations are impacted by at least one high magnitude stressor, and 63 percent are affected by multiple high magnitude stressors. These stressors are chronic and are expected to continue with a similar magnitude of impact into the future, unless ameliorated by increased implementation of conservation actions. Furthermore, these multiple factors are not acting independently, but are acting together, which can result in cumulative effects that lower the overall viability of the species. For a description of the methods used in this threats assessment, refer to pages 39-43 of the SSA report.

    ER30SE16.028

    In addition to the above stressors, other factors may be affecting individuals. Disease (whether new or currently existing at low levels but increasing in prevalence) is another emerging and potentially catastrophic stressor to eastern massasauga rattlesnake populations. In the eastern and Midwestern United States, the eastern massasauga rattlesnake is specifically vulnerable to disease due to Ophidiomyces fungal infections (snake fungal disease (SFD)). The emergence of SFD has been recently documented in the eastern massasauga rattlesnake (Allender et al. 2011, pp. 2383-2384) and many other reptiles (Cheatwood et al. 2003, pp. 333-334; Clark et al. 2011, p. 890; Paré et al. 2003, pp. 12-13; Rajeev et al. 2009, pp. 1265-1267; Sigler et al. 2013, pp. 3343-3344; Sleeman 2013, p. 1), and is concerning because of its broad geographic and taxonomic distributions. However, we did not have sufficient information on the emergence and future spread of SFD or other diseases to reliably model this stressor for forecasting future conditions for the rattlesnake. Our quantitative modeling analysis also does not consider two other prominent stressors, road mortality and persecution and collection, due to a lack of specific information on the magnitude of impacts from these factors. Additionally, this species is vulnerable to the effects of climate change through increasing intensity of winter droughts and increasing risk of summer floods, particularly in the southwestern part of its range (Pomara et al., undated; Pomara et al. 2014, pp. 95-97). Thus, while we acknowledge and considered that disease, road mortality, persecution and collection, and climate changes are factors that affect the species, and which may increase or exacerbate existing threats in the future, our viability assessment does not include a quantitative analysis of these stressors.

    The eastern massasauga rattlesnake is State-listed as endangered in Iowa, Illinois, Indiana, New York, Ohio, Pennsylvania, and Wisconsin, and is listed as endangered in Ontario. In Michigan, the species is listed as “special concern,” and a Director of Natural Resources Order (No. DFI-166.98) prohibits take except by permit.

    Of the 263 sites with extant eastern massasauga populations rangewide, 62 percent (164) occur on land (public and private) that is considered protected from development; development at the other 38 percent of sites may result in loss or fragmentation of habitat. Signed candidate conservation agreements with assurances (CCAAs) with the Service exist for one population in Ohio, one population in Wisconsin, and populations on State-owned lands in Michigan. These CCAAs include actions to mediate the stressors acting upon the populations and provide management prescriptions to perpetuate eastern massasauga rattlesnakes on these sites. The Wisconsin Department of Natural Resources (DNR) developed a CCAA for one population in Wisconsin. Through the agreement, existing savanna habitat on State land, especially important to gravid (pregnant) females, will be managed to maintain and expand open canopy habitat, restore additional savanna habitat, and enhance connectivity between habitat areas. In Ohio, a CCAA for a State Nature Preserve population addresses threats from habitat loss from the prevalence of late-stage successional vegetation, the threat of fire both pre- and post-emergence of eastern massasauga rattlesnakes, and limited connectivity through habitat fragmentation.

    The State of Michigan developed a CCAA that will provide for management of eastern massasauga rattlesnakes on State-owned lands. This area includes 33 known eastern massasauga occurrences, which represents approximately 34 percent of the known extant occurrences within the State and 10 percent rangewide. In addition, other eastern massasauga rattlesnake sites on county- or municipally owned land, as well as on privately owned land, could be included in the CCAA through Certificates of Inclusion issued by the Michigan Department of Natural Resources (MI DNR) prior to the effective date of listing (see DATES, above). The CCAA includes management strategies with conservation measures designed to benefit the eastern massasauga rattlesnake; these management strategies will be implemented on approximately 136,311 acres (55,263 hectares) of State-owned land. Many of these management actions are ongoing, but we do not have site-specific data on these management actions to include them in our analysis in the SSA. Nonetheless, we determine that the management actions proposed will address some of the threats (for example, habitat loss, vegetative succession) impacting populations on State lands in Michigan.

    We did not assess the CCAAs under our Policy for Evaluation of Conservation Efforts When Making Listing Decisions (PECE policy) (68 FR 15100; March 28, 2003) because the plans cover only a small part of the range of the species, and the conservation measures in the plans will not change the overall biological status of the species.

    We have information that at an additional 22 sites (that are not covered by a CCAA), habitat restoration or management, or both, is occurring; however, we do not have enough information for these sites to know if habitat management has mediated the current stressors acting upon the populations. The Faust model, however, did include these kinds of activities in the projections of trends, and, thus, our future condition analyses are based on the assumption that ongoing restoration would continue into the future. Lastly, an additional 18 populations have conservation plans in place. Although these plans are intended to manage for the eastern massasauga rattlesnake, sufficient site-specific information is not available to assess whether these restoration or management activities are currently ameliorating the stressors acting upon the population. Thus, we were unable to include the potential beneficial impacts into our quantitative analyses.

    Species' Projected Future Condition

    To assess the future resiliency, representation, and redundancy of the eastern massasauga rattlesnake, we used the Faust model results to predict the number of self-sustaining populations likely to persist over the next 10, 25, and 50 years, and extrapolated those proportions to the remaining presumed extant populations to forecast the number of self-sustaining populations likely to persist at the future time scales. We then predicted the change in representation and redundancy. The most pertinent results are summarized below. For the full results for all time periods, refer to pages 61-76 of the SSA report.

    The projected future resiliency (the number of self-sustaining populations) varies across the eastern massasauga rattlesnake's range. In the western analysis unit, 83 percent of the modeled populations are projected to have a declining trajectory. Furthermore, 94 percent of the populations have a low probability of persistence (the probability of remaining above the quasi-extirpated threshold of 25 adult females is less than 90 percent) by year 25, and, thus, the number of forecasted populations likely to be extant declines over time. By year 50, 18 of the 20 presumed extant populations are projected to be extirpated (no individuals remain) or quasi-extirpated, with only 1 population projected to be self-sustaining. The resiliency of the western analysis unit is forecasted to decline over time. The situation is similar in the central and eastern analysis units, but to a lesser degree. In the central analysis unit, 70 percent of the modeled populations are projected to have a declining trajectory and 78 percent a low probability of persistence, and thus, by year 50, 180 of the 256 presumed extant populations are projected to be extirpated or quasi-extirpated, and 47 populations to be self-sustaining. In the eastern analysis unit, 83 percent of the modeled populations are projected to have a declining trajectory and 92 percent of the populations are projected to have a low probability of persistence, and, thus, by year 50, 65 of the 71 presumed extant populations are projected to be extirpated or quasi-extirpated, and 6 to be self-sustaining. Rangewide, 54 (16 percent) of the 347 populations that are currently presumed to be extant are projected to be self-sustaining by year 50.

    We calculated the future extent of occurrence (representation) for the 57 modeled populations (Faust model) and for the populations forecasted to persist at years 10, 25, and 50 by using the counties occupied by populations to evaluate the proportions of the range falling within each analysis unit and the change in spatial distribution within each analysis unit. Our results indicate that eastern massasauga rattlesnake populations are likely to persist in all three analysis units; however, the distribution of the range is predicted to contract northeasterly, and the geographic area occupied will decline within each analysis unit over time. The results project an 80 percent reduction of the area occupied by the eastern massasauga rattlesnake rangewide by year 50, with the western analysis unit comprising most of the decline (91 percent reduction within the unit). These projected declines in extent of occurrence across the species' range and within the analysis units suggest that loss of adaptive diversity is likely to occur.

    We assessed the ability of eastern massasauga rattlesnake populations to withstand catastrophic events (redundancy) by predicting the number of self-sustaining populations in each analysis unit and the spatial dispersion of those populations relative to future drought risk.

    The projected future redundancy (the number and spatial dispersion of self-sustaining populations) across the eastern massasauga rattlesnake's range varies. In the western analysis unit, the risk of analysis-unit-wide extirpations from either a D2 or D3 catastrophic drought is high, given the low number of populations forecasted to be extant. Coupling this with a likely concurrent decline in population clusters (reduced spatial dispersion), the risk of analysis-unit-wide extirpation is likely even higher. Thus, the level of redundancy in the western analysis unit is projected to decline into the future.

    Conversely, in the eastern analysis unit, there is little to no risk of a D2- or D3-level drought, and consequently the probability of unit-wide extirpation due to a catastrophic drought is very low. Thus, redundancy, from a catastrophic drought perspective, is not expected to decline over time in the eastern analysis unit.

    Similarly, in the central analysis unit, there is little to no risk of a D3 catastrophic drought. The southern and northern portions of the central analysis unit, however, are at risk of a D2-level catastrophic drought. Losses of populations in these areas may lead to portions of the central analysis unit being extirpated and will also increase the probability of analysis-unit-wide extirpation. However, the risk of analysis-unit-wide extirpation will likely remain low given the presumed persistence of multiple populations scattered throughout low drought risk areas. Thus, from a drought perspective, the level of redundancy is not likely to be noticeably reduced in the central analysis unit (see Figure 4.3 (p. 60) in the SSA report for a detailed map). A caveat to this conclusion, however, is that the forecasted decline in extent of occurrence suggests our data are too coarse to tease out whether the forecasted decline in populations will lead to substantial losses in spatial distribution, and, thus, the risk of analysis-unit-wide extirpation might be higher than predicted. Therefore, the future trend in the level of redundancy in the central analysis unit is less clear than for either the western analysis unit or the eastern analysis unit.

    Given the loss of populations to date, portions of the eastern massasauga rattlesnake's range are in imminent risk of extirpation in the near term. Specifically, our analysis suggests there is a high risk of extirpation of the western analysis unit and of southern portions of the central and eastern analysis units within 10 to 25 years. Although self-sustaining populations are expected to persist, loss of other populations within the central and eastern analysis units are expected to continue as well, and, thus, those populations are at risk of extirpation in the future. These losses have led to reductions in resiliency and redundancy across the range and may lead to irreplaceable loss of adaptive diversity across the range of the eastern massasauga rattlesnake, thereby leaving the eastern massasauga rattlesnake less able to adapt to a changing environment into the future. Thus, the viability of the eastern massasauga rattlesnake has declined and is projected to continue to decline over the next 50 years.

    The reader is directed to the SSA report for a more detailed discussion of our evaluation of the biological status of the eastern massasauga rattlesnake and the influences that may affect its continued existence. Our conclusions are based upon the best available scientific and commercial data.

    Summary of Changes From the Proposed Rule

    In preparing this final rule, we reviewed and fully considered comments from the public and peer reviewers on the proposed rule. This final rule incorporates minor changes to our proposed listing based on the comments we received, as discussed below in Summary of Comments and Recommendations, and newly available scientific data. The SSA report was updated based on additional data provided, primarily by State fish and wildlife agencies. These data allowed us to refine site-specific information and improve our understanding of status for several populations. Thus, the final numerical results in the second version of the SSA report are slightly different from those in the first version that was used for the proposed rule. None of the new information we received changed our determination in this final rule that the eastern massasauga rattlesnake is a threatened species.

    Summary of Comments and Recommendations

    In the proposed rule published on September 30, 2015 (80 FR 58688), 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 USA Today. 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 review of the SSA report from 32 knowledgeable individuals with scientific expertise that included familiarity with eastern massasauga rattlesnake and its habitat, biological needs, and threats. We received responses from 21 of the peer reviewers.

    We reviewed all comments we received from the peer reviewers for substantive issues and new information regarding the eastern massasauga rattlesnake. Peer reviewer comments are addressed in an appendix to the SSA report, and in the SSA itself, as appropriate.

    Federal Agency Comments

    (1) Comment: The U.S. Forest Service (Huron-Manistee National Forest) stated that there is a need to differentiate between upland and lowland habitat in regard to seasonal restrictions on prescribed burning within management units of the Huron-Manistee National Forest where eastern massasauga rattlesnakes occur. The Forest Service cited a conservation plan (Kingsbury 2002) that stated that upon emerging from hibernation, most eastern massasauga rattlesnakes are lethargic and constrained by cool temperatures, and so remain in the vicinity of their wetland burrows through mid-May. They also recommended that the Service provide a framework for allowing prescribed fire in upland habitats until May 15 in ways that do not violate section 9 of the Act.

    Our Response: We agree that the best available information suggests that, upon emerging from hibernation, most eastern massasauga rattlesnakes do remain lethargic, and stay in the vicinity of their burrows (usually located in wetlands) for up to several weeks, and during that time they are especially vulnerable to risks from predation, prescribed fire, or other sources of mortality. Prior to emergence from hibernation, when eastern massasauga rattlesnakes still have some protection in the confines of the burrows in which they hibernate, they are relatively protected from sources of mortality that would take place on the surface. Thus, risk of mortality caused by prescribed fire is greatest when snakes are above ground (Durbian 2006, pp. 329-330; Cross et al. 2015, pp. 346-347). Many populations of eastern massasauga rattlesnakes are small, and in such populations, loss of only a few individuals can have significant impacts (Seigel and Sheil 1999, p. 20), and prescribed fire was one of the most prominent stressors we identified in the SSA for the eastern massasauga rattlesnake.

    Unfortunately, within the range of this species, unpredictable late winter or spring weather patterns, and resulting ground conditions (such as humidity, snow cover, prevailing winds), provide a number of constraints to land managers who need to implement prescribed fires to maintain habitats. Thus, we are also aware that a challenge to managing occupied eastern massasauga habitat with prescribed fire is determining the best time to apply fire without risking mortality. At most of the known sites within the range of the eastern massasauga rattlesnake that were included in our analysis, populations are small and vulnerable to additive mortality (any mortality beyond that which would be expected from predation or other natural factors), as could occur from poorly timed prescribed fire. While land managers often request “cutoff” dates before which burns can be assumed to be safe, natural variation in weather cycles can affect the dates when snakes emerge from hibernation, with fluctuations of 1 to 3 weeks not being uncommon. In addition to the conservation plan (Kingsbury 2002, entire) provided by the Forest Service, and that was also reviewed in our SSA, we discussed emergence biology of eastern massasauga rattlesnakes at the latitude of the Huron-Manistee National Forest with Dr. Bruce Kingsbury (2016, pers. comm.). Kingsbury shared additional observations of emerging eastern massasauga rattlesnakes in northern Michigan since his 2002 conservation plan; he added that his observations since 2002 now indicate that many eastern massasauga rattlesnakes that emerge from hibernation in central and northern Michigan in April begin to disperse into adjacent habitats as early as May 1. Because of this, Kingsbury cautioned against reliance on a firm calendar date as a rule by which to plan prescribed fires if unintentional mortality is to be avoided. Instead, he urged land managers to use predictive models to help forecast when eastern massasauga rattlesnakes are most likely to emerge from hibernacula in a given region and year. We thus cannot provide the framework requested by the Forest Service to conclude that use of prescribed fire before May 15 will never result in “take” of the eastern massasauga rattlesnake.

    Because the issue of using prescribed fire as a tool for maintaining suitable habitat for eastern massasauga rattlesnakes is so important, but also understandably controversial (due to the potential for additive mortality), the Service funded a study (from 2010 through 2015) of rangewide phenology (relation between climate and periodic biological phenomena) of the species to better understand the factors influencing ingress and egress from hibernation. Preliminary results of that study indicate that emergence of eastern massasauga rattlesnakes from hibernation at sites throughout the range is predictable based on rising subsurface soil temperatures (King 2016, pers. comm.). In addition, regional weather stations maintained by the National Oceanic and Atmospheric Administration (NOAA) monitor soil temperatures at the strata crucial for predicting emergence. Near real-time data generated at these weather stations also are accessible to the public, and when stations are located near extant populations of the eastern massasauga rattlesnake, these could be used by land managers to determine whether emergence from hibernation is near, and thus whether burns should be avoided for the remainder of the active season. As further analyses are completed and the results of the study are made available, we will work cooperatively with interested land managers to incorporate the results into useful burn plans. Federal land management agencies, such as the Forest Service, that use prescribed fire to manage habitats occupied by the eastern massasauga rattlesnake should consult with the Service as provided by section 7(a)(2) of the Act. In addition, private and State land managers can work with the Service to develop plans and determine if permits are appropriate to conduct recovery efforts.

    Comments From States

    (2) Comment: A State fish and wildlife management agency (Pennsylvania Boat and Fish Commission (PBFC)), a State advisory group (Pennsylvania Biological Survey), and a private individual stated that the eastern massasauga rattlesnake has experienced a large range reduction in Pennsylvania, and current surveys confirm that extant populations remain at only three sites in the State. They further commented that the remaining populations are isolated from one another and subject to continued threats of habitat alteration, persecution, and illegal collecting.

    Our Response: We thank the commenters for the detailed information. These data corroborate our analysis. We considered the continued decline of the eastern massasauga rattlesnake in Pennsylvania, as well as other States in the range of the eastern massasauga rattlesnake, in the SSA, and agree that the best available information indicates that this species is declining in Pennsylvania. Based on the status information throughout the species' range and continuing threats to the species, we determined that the eastern massasauga rattlesnake is likely to become in danger of extinction throughout its range within the foreseeable future, and thus are listing it as a threatened species.

    (3) Comment: A State fish and wildlife management agency (PBFC), a State advisory group (Pennsylvania Biological Survey), and several private individuals commented that listing would benefit the eastern massasauga rattlesnake by encouraging recovery planning, surveys, outreach and education to the public, and other rangewide conservation efforts.

    Our Response: After listing the species, the Service will continue to work closely with State conservation agencies, nongovernmental organizations (NGOs), and other willing partners throughout the range of the species to determine practical and comprehensive actions and outreach to conserve and recover the eastern massasauga rattlesnake.

    (4) Comment: Two State fish and wildlife management agencies (PBFC and Wisconsin Department of Natural Resources (WI DNR)) commented that the Service incorporated data and comments provided by herpetologists from the commenter's staff on the SSA, and that the SSA represents the best available information on the eastern massasauga rattlesnake in their State.

    Our Response: We thank the staffs of PBFC and WI DNR, as well as other State and county conservation agencies and NGOs, for assisting us in compiling the best available information on the current distribution and status of the eastern massasauga rattlesnake throughout its range and for providing review of the SSA report.

    (5) Comment: A State fish and wildlife management agency (PBFC) and the Western Pennsylvania Conservancy (an NGO) commented that an Eastern Massasauga Species Action Plan for Pennsylvania was compiled in 2011, to prioritize and guide research and conservation actions at the State's extant and presumed extant sites, and noted recent conservation and management actions under that plan. A copy of the plan was provided.

    Our Response: We thank the commenters for providing a copy of the plan, and we incorporated actions outlined in the plan into our revised SSA report. When the species is listed (see DATES, above), conservation and recovery planning will involve multiple stakeholders. In addition, relatively new tools (such as spatially explicit habitat models or collaborative processes such as Landscape Conservation Design) are available to plan recovery actions at landscape scales, and to involve multiple stakeholders in the planning process. After listing takes effect (see DATES, above), the Service will continue to work closely with State conservation agencies, NGOs, and other willing partners to determine practical and comprehensive conservation actions for the eastern massasauga rattlesnake.

    (6) Comment: A State fish and wildlife management agency (PBFC) stated that the loss of resiliency and redundancy across the species' range within Pennsylvania leaves the eastern massasauga rattlesnake vulnerable and with little adaptability to future changes in its environment. In addition, this commenter stated that, given the small part of the eastern massasauga rattlesnake's range that is represented in Pennsylvania, the conservation actions undertaken within the State at these vulnerable, isolated sites are projected to have little impact on the overall persistence of the species without a more comprehensive, regional approach.

    Our Response: We agree that loss of redundancy and loss of resiliency across the range of the eastern massasauga rattlesnake are of concern. As stated in the SSA report for the eastern massasauga rattlesnake, we used the genetic haplotypes identified by Ray et al. (2013) as geographic analysis units. We found variation in resiliency and redundancy within and between the three analysis units (western analysis unit, central analysis unit, and eastern analysis unit). While resiliency was lowest in the western analysis unit, there was notably low resiliency in the central analysis unit and eastern analysis unit, especially along the southern edges, which includes populations in Pennsylvania (in the eastern analysis unit). Following listing (see DATES, above), we will continue to work with our partners in State agencies as well as with local agencies, NGOs, and other interested parties to implement conservation measures for this species. We agree that, whenever possible, conservation measures undertaken as part of comprehensive regional plans have more value than actions taken on a site-by-site basis. In addition to recovery planning and other traditional tools, Landscape Conservation Design (LCD) may be an option to help catalyze such regional planning approaches for the eastern massasauga rattlesnake.

    (7) Comment: A State fish and wildlife management agency (PBFC) stated that, because of the species' increasing isolation, habitat loss, and population decline, potential changes to the landscape and site conditions would have a high risk of adversely affecting Pennsylvania's eastern massasauga rattlesnake population.

    Our Response: We agree that most of these factors present risks to the eastern massasauga rattlesnake, and these factors were considered in the SSA for the species. One exception was isolation, which was not evaluated as a direct stressor. While genetic isolation may operate as a stressor, our review of the literature for the SSA provides evidence that some high degree of genetic isolation in this species may be natural and pre-date European settlement; thus, isolation in and of itself is not necessarily a stressor to the species.

    (8) Comment: Several commenters, including a State fish and wildlife management agency (WI DNR), provided statements supporting our determination that designating critical habitat for the eastern massasauga rattlesnake is not prudent due to the increased risks to the species if site locations are made publicly available.

    Our Response: In the Critical Habitat section of this final rule, we have determined that the designation of critical habitat would increase the threat to eastern massasauga rattlesnakes from persecution, unauthorized collection, and trade; thus, designating critical habitat for the species is not prudent. Designation of critical habitat requires the publication of detailed maps and a specific narrative description of critical habitat in the Federal Register, and these in turn often become available through other media. We have determined that the publication of maps and descriptions outlining the locations of this species would further facilitate unauthorized collection and trade, as collectors would know the exact locations where eastern massasauga rattlesnakes occur. Due to the threat of unauthorized collection and trade, a number of biologists working for State and local conservation agencies that manage populations of eastern massasauga rattlesnakes also expressed to the Service serious concerns with publishing maps and boundary descriptions of occupied habitat areas that could be associated with critical habitat designation (Redmer 2015, pers. comm.).

    (9) Comment: A State fish and wildlife management agency (WI DNR) commented that they will continue to encourage management of known eastern massasauga rattlesnake sites to address succession and other habitat concerns, and will continue to submit data and work collaboratively with the Service on eastern massasauga rattlesnake conservation.

    Our Response: We thank WI DNR for their shared interest in conservation actions for the eastern massasauga rattlesnake, and for stating their interest in continuing our partnership for conserving this species following listing.

    (10) Comment: WI DNR provided updated data on the status of the eastern massasauga rattlesnakes and their conservation actions at two specific sites.

    Our Response: We thank WI DNR for their willingness to coordinate, for providing relevant data while we were preparing the SSA, and for providing additional information in their comments. We have incorporated that additional information into our revised SSA report.

    (11) Comment: WI DNR commented that an additional conservation measure for the eastern massasauga rattlesnake in Wisconsin includes a broad incidental take permit/authorization for management work conducted within massasauga habitat (http://dnr.wi.gov/topic/ERReview/ItGrasslands.html).

    Our Response: When the listing becomes effective (see DATES, above), any incidental take of eastern massasauga rattlesnakes will be prohibited under section 9 of the Act unless permitted under section 10(a)(1)(B) or section 7(a)(2) of the Act. We will work with WI DNR to clarify our respective roles and responsibilities with respect to incidental take.

    (12) Comment: The Minnesota Department of Natural Resources (MN DNR) confirmed that there are no verified records of eastern massasauga rattlesnakes from within the State in the past 50 years. They stated that because of this lack of recent occurrence, they may request that the Service remove Minnesota from the eastern massasauga rattlesnake's current range.

    Our Response: During our evaluation of the species, we consulted with staff from the MN DNR to assess the best available information on the species' occurrence in the State. We thank the commenter for providing additional information specific to surveys that led to historical populations in Minnesota being considered likely extirpated. We will consider a range of recovery actions following listing, and will work with local and State partners to determine and implement actions that would have the most benefit to the species. We concur that the best available information suggests that this species is likely extirpated from Minnesota, and thus Minnesota is not considered part of the current range. However, the species receives the protections of the Act wherever found; thus, if the species does occur in Minnesota in the future, it would be protected there.

    (13) Comment: The MI DNR recommended that, to address public safety concerns, the Service develop a rule under section 4(d) of the Act (a “4(d) rule”) that would allow people to move the snakes from “high risk environments (for example, backyards, state campgrounds, schools) to areas with low risk.” They further commented that such a 4(d) rule would reduce persecution of the snakes.

    Our Response: We understand that the MI DNR receives several calls each year reporting an eastern massasauga rattlesnake in or near a human dwelling and requesting assistance to remove it. A 4(d) rule, however, is not necessary to provide for the relocation of snakes from areas where people may be at risk of bodily harm. Such an action, if done on a good faith belief to protect a person from bodily harm, is already provided for under the Act without a 4(d) rule; see 16 U.S.C. 1540(a)(3) and 1540(b)(3). This provision of the Act applies to all listed species.

    We also note that non-harmful actions to encourage eastern massasauga rattlesnakes to leave, stay off, or keep out of areas with frequent human use, including a residence, yard, structure, sidewalk, road, trail, foot path, or campground, would not result in take and thus will not be prohibited. For example, homeowners may use a broom or pole to move an eastern massasauga rattlesnake away from their property. When circumstances create an imminent threat to human safety, all forms of take of listed species (including harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect) are allowed to safeguard human safety. The Act's implementing regulations (50 CFR part 17) include a take exemption pursuant to the defense of human life (for threatened species, see 50 CFR 17.31, which incorporates provisions set forth at 50 CFR 17.21(c)(2)): “any person may take endangered [or threatened] wildlife in defense of his own life or the lives of others.”) The regulations at 50 CFR 17.21(c)(4) require that any person taking, including killing, listed wildlife in defense of human life under this exception must notify our headquarters Office of Law Enforcement, at the address provided at 50 CFR 2.1(b), in writing, within 5 days. In addition, section 11 of the Act enumerates the penalties and enforcement of the Act. In regard to civil penalties, section 11(a)(3) of the Act states, “Notwithstanding any other provision of this [Act], no civil penalty shall be imposed if it can be shown by a preponderance of the evidence that the defendant committed an act based on a good faith belief that he was acting to protect himself or herself, a member of his or her family, or any other individual from bodily harm, from any endangered or threatened species” (16 U.S.C. 1540(a)(3)). Section 11(b)(3) of the Act contains similar language in regard to criminal violations (see 16 U.S.C. 1540(b)(3)).

    Eastern massasauga rattlesnakes generally hibernate in wetlands, rather than in places occupied by people. However, in areas near wetlands or uplands with natural habitat, eastern massasauga rattlesnakes occasionally find their way into areas of high human use (for example, human-made structures, backyards, or campgrounds). If an eastern massasauga rattlesnake is encountered, it is best to not disturb it and to walk away from it. However, in areas of high human use, other responses may be necessary to protect people from bodily harm. Eastern massasauga rattlesnakes observed in areas of human use may subsequently conceal themselves as a natural defense mechanism and then later be unexpectedly encountered at close range, presenting the possibility of bodily harm. Short-distance translocation (moving from one location to another) of venomous snakes is a common method used to reduce or mitigate snake-human conflicts. In one recent study, eastern massasauga rattlesnakes relocated 200 meters (656 feet) from the capture point did not exhibit abnormal movement or basking behavior and did not return to the capture site (Harvey et al. 2014). Because the eastern massasauga rattlesnake is a venomous species, we advise due caution and encourage anyone wishing to move a snake to contact an appropriate State or local agency for professional expertise in handling rattlesnakes. In addition, the State or local landowner may have other legal requirements that apply to handling wildlife. Therefore, when on public lands, we encourage contacting the land manager to address the situation whenever feasible. However, anyone may take necessary action at any time to protect one's self or another person from bodily harm.

    (14) Comment: MI DNR provided a Michigan Natural Features Inventory (MNFI) report with the most current eastern massasauga rattlesnake data for the State.

    Our Response: We thank MI DNR and MNFI for compiling and providing this additional information. MNFI is the organization responsible for maintaining the Michigan Natural Heritage Database, which includes known historical records for species of concern, including the eastern massasauga rattlesnake, in Michigan. The database includes records for populations of extirpated, likely extirpated, unknown, and extant status. During preparation of the SSA report, the Service worked closely with MNFI to ensure that the most current, available information from the Michigan Natural Heritage Database on the status of the eastern massasauga rattlesnake in Michigan was included in our analyses. This included new records that the MNFI provided to us as late as September 2015, after we had developed the proposed listing rule. The report compiled by MNFI was added to our records and used to further document our decision.

    (15) Comment: MI DNR noted, as was mentioned in the SSA report, that they are in the final stages of completing a CCAA for the eastern massasauga rattlesnake on MI DNR lands. They requested that the Service consider how Michigan's CCAA will address threats to the eastern massasauga on MI DNR lands in the final listing determination.

    Our Response: A CCAA is a formal agreement between the Service and one or more parties to address the conservation needs of proposed or candidate species, or species likely to become candidates, before they become listed as endangered or threatened. Landowners voluntarily commit to conservation actions that will help stabilize or restore the species with the goal that if all other necessary landowners did the same, listing would become unnecessary. These agreements encourage conservation actions for species that are candidates for listing or are likely to become candidates. Although a single property owner's activities may not eliminate the need to list, conservation, if conducted by enough property owners throughout the species' range, can eliminate the need to list. The agreements provide landowners with assurances that their conservation efforts will not result in future regulatory obligations in excess of those they agree to at the time they enter into the agreement.

    After publication of the proposed rule to list the eastern massasauga rattlesnake as a threatened species, the State of Michigan submitted to the Service a CCAA that would provide for management of eastern massasauga rattlesnakes on State-owned lands. The term of the CCAA and permit is 25 years. The CCAA includes management strategies with conservation measures designed to benefit eastern massasauga rattlesnakes; these management strategies will be implemented on approximately 136,311 acres (55,263 hectares) of State-owned land.

    Management strategies beneficial to eastern massasauga rattlesnakes are currently being implemented on many sites on State-owned lands in Michigan, and are ongoing. The CCAA describes a program of continuing existing management strategies beneficial to eastern massasauga rattlesnakes and reflects the current conditions analyzed in the SSA. Existing conservation on State-owned lands in Michigan was accounted for in the SSA; the CCAA does not provide detailed site-specific information to alter that analysis. Thus, the CCAA does not alter the SSA results or projected population trends. While the actions in the CCAA are expected to address some of the stressors on many sites on State-owned lands in Michigan, the CCAA only covers a small part of the species' range; therefore, the conservation measures did not affect the overall biological status of the species.

    (16) Comment: MI DNR questioned the Service's use of three analysis units to assess the species' current conditions in the SSA, and how use of those three units will affect recovery planning and, ultimately, delisting. MI DNR expressed their opinion that recovery planning be based on the species' range and not the three analysis units.

    Our Response: We identified and delineated the analysis units to assess the historical, current, and future representation of the species. Representation is an indicator of the ability of the species to respond to physical (for example, habitat, climate) and biological (for example, new diseases, predators, competitors) changes in its environment. The intent of the analysis units is to capture the breadth of adaptive diversity (genotypic (genetic makeup) and phenotypic (physical traits) diversity of the species). We evaluated available genetic and ecological information to identify areas of unique or differing genotypic and phenotypic diversity. We did not find any compelling ecological differences, but did find strong evidence of genetic variation across the range. Data indicate that the eastern massasauga rattlesnake shows high levels of genetic variation (populations can be genetically distinguished from each other) at regional and local scales. The synthesis of this genetic data supports delineating, on the basis of genetic differentiation, the three broad regions identified by Ray et al. (2013, entire). Although several studies showed detectable genetic differences among populations within these three broad areas, we did not have sufficient information to delineate smaller-scale units. Thus, we assessed the distribution among and within these three geographic units to evaluate changes in eastern massasauga rattlesnake representation from historical condition to the present and future. These analysis units were identified for purposes of evaluating representation in the SSA, and are not, at this point, intended to represent recovery units as might be identified during recovery planning. Any future recovery planning effort will use the best available information to promote the conservation and survival of the species.

    (17) Comment: The New York Department of Environmental Conservation (NYDEC) commented that the species is listed as State endangered in New York, and that due to the limited range and vulnerability of populations, the State does not anticipate delisting the species at any point in the future.

    Our Response: We considered the current status of the eastern massasauga rattlesnake in New York, as well as other States in the range of the eastern massasauga rattlesnake, in the SSA. We agree that the best available information indicates that only two populations of this species occur in New York State, and thus its conservation status is of concern there.

    (18) Comment: NYDEC stated that the two populations in the State occur on lands under conservation protection: One is owned by a private conservation organization, and the other is a State Wildlife Management Area. NYDEC further commented that it has been successful at managing for eastern massasauga rattlesnakes at the State-owned site, and believes that under continued management, the species will continue to thrive at that site. Thus, NYDEC encourages the Service to endorse active habitat management practices that promote habitat for the species.

    Our Response: The efforts of States and other partners to benefit the eastern massasauga rattlesnake are important, and we agree that habitat management activities to maintain appropriate vegetative structure for the eastern massasauga rattlesnake are crucial to its continued survival. However, certain management activities (for example, prescribed fire) are also known to be important stressors to the species, especially where population sizes are small or when timing of the management action increases risk (for example, just after snakes emerge from hibernation). We will continue to work closely with our partners in State and local agencies, NGOs, and any other parties interested in conserving this species to investigate best management practices and the tradeoffs between management and potential mortality to the rattlesnakes.

    (19) Comment: NYDEC requested that the Service include a 4(d) rule to exempt some habitat management practices, such as woody vegetation removal, when conducted at a time and scale that makes adverse impacts to the eastern massasauga rattlesnake unlikely.

    Our Response: We agree that active habitat management for the eastern massasauga rattlesnake will be crucial to long-term maintenance and recovery of existing populations. However, we believe issuance of a 4(d) rule would not be required to allow such management activities for two reasons. First, management actions may take place on a case-by-case basis, and we would like to learn more about how to lessen the risk of eastern massasauga rattlesnake mortality while still allowing appropriate habitat management to occur. Second, vegetation management actions that take place at certain times of the year when the snakes are not active (for example, during winter when snakes are hibernating underground) would not affect the species and, thus, do not require a 4(d) rule. The Act allows flexibility for us to consider a range of recovery actions following listing, and we will work with local and State partners to determine and implement actions that have the most benefit to the species.

    Public Comments

    (20) Comment: An NGO (the Western Pennsylvania Conservancy (WPC)) commented that they continue to work closely with PBFC on eastern massasauga rattlesnake conservation efforts, including implementation of the Eastern Massasauga Species Action Plan. In 2009-2010, habitat management plans were developed for eight private landowners in areas where eastern massasauga rattlesnakes are known to occur. WPC has implemented some of the management plans with the help of PBFC, the Pennsylvania Wildlife Commission, and the Pennsylvania Department of Conservation and Natural Resources, including habitat restoration activities funded by small foundation grants over the past 5 years.

    Our Response: Following listing (see DATES, above), we will continue to work with our partners in State agencies as well as with local agencies, NGOs, and other interested parties to implement conservation measures for this species. Existing efforts to conserve the species or local planning documents, like those mentioned by the commenter, will be valuable in developing regional or rangewide recovery efforts.

    (21) Comment: One commenter stated that it is difficult to achieve on-the-ground conservation and restoration for the eastern massasauga rattlesnake and that land protection efforts are slow and opportunities are limited.

    Our Response: Limited resources are often a challenge in conservation. Following listing (see DATES, above), we will continue to explore opportunities to partner with State and local conservation agencies, NGOs, and other interested parties to leverage resources and find cooperative solutions to such challenges for the eastern massasauga rattlesnake.

    (22) Comment: One commenter stated that not all factors that may contribute to the decline of the species were fully explored in the SSA. In particular, the commenter noted that, while the proposed rule acknowledged climate change as a factor exacerbating the threats to this species, it did not provide a quantitative analysis of the impacts nor fully account for such uncertainty.

    Our Response: A recently published climate change vulnerability analysis for the eastern massasauga rattlesnake (Pomara et al. 2015, entire) suggests that populations in the southwestern parts of the species' range are extremely vulnerable to climate change through increasing intensity of winter drought and increasing risks of summer floods. Populations in the eastern and central parts of the species' range are vulnerable to climate variables, but to a lesser extent than the southwestern populations, and the northeastern populations are least vulnerable to climate change.

    We acknowledged in the SSA report that we believe our results underestimate the risks associated with climate change, especially in Indiana and Michigan. As we move forward with recovery for the eastern massasauga rattlesnake, we will more fully investigate the effects of climate change and work towards buffering vulnerable populations.

    (23) Comment: Several commenters supported listing the eastern massasauga rattlesnake. The comments included statements such as:

    • Resource development (natural gas extraction and open pit mining for limestone, coal, and gravel) is a significant threat to the species;

    • Significant ongoing decline and multiple continuing threats throughout the species' range support listing;

    • Only small, isolated populations of the eastern massasauga rattlesnake remain, and the species should be protected before further losses occur; and

    • It is important to preserve biodiversity, so this species should be protected.

    Our Response: We thank these commenters for their statements. When Congress passed the Act in 1973, it recognized that our rich natural heritage is of “aesthetic, ecological, educational, recreational, and scientific value to our Nation and its people.” It further expressed concern that many of our nation's native plants and animals were in danger of becoming extinct. The purpose of the Act is to protect and recover imperiled species and the ecosystems upon which they depend, and thus plays a role in preserving biodiversity.

    (24) Comment: One commenter stated that, as an alternative to designating critical habitat, species protection could be improved by strengthening environmental review for the eastern massasauga rattlesnake by providing more information and adding more stringent requirements on those conducting permitted activities. This commenter recommended close coordination between Federal and State agencies to achieve the appropriate level of environmental review and management to conserve the species.

    Our Response: Following listing of the eastern massasauga rattlesnake (see DATES, above), regulatory provisions of the Act will take effect. For example, the actions of Federal agencies that may affect the species will be subject to consultation with the Service as required under section 7(a)(2) of the Act. In doing so, the Service works with the action agencies to avoid or minimize adverse effects to the species to ensure that the continued existence of the species is not jeopardized. Also following listing, we will work closely with our partners in Federal, State, and local units of government, as well as NGOs and others with an interest in the species, to identify and implement proactive measures to conserve and recover the species.

    (25) Comment: Several commenters stated that critical habitat should be designated for the eastern massasauga rattlesnake. One of these commenters added that habitat is “critical to the species' survival” and habitat loss and degradation is the most significant threat to the species, and provided information arguing that although human persecution is a threat, and human disturbance of the snakes did change the snakes' behavior, no long-term effects were observed. They further commented that increased risk of illegal collection or persecution could be addressed through education efforts.

    Our Response: We agree that outreach efforts will be important in addressing many topics related to conserving the eastern massasauga rattlesnake. However, we determined that designation of critical habitat would increase persecution, unauthorized collection, and trade threats to the eastern massasauga rattlesnake. The eastern massasauga rattlesnake is highly valued in the pet trade, and that value is likely to increase as the species becomes rarer. In addition, as a venomous species, it also is the target of persecution. Furthermore, States and other land managers have taken measures to control and restrict information on the locations of the eastern massasauga rattlesnake and to no longer make location and survey information readily available to the public. We have, therefore, determined in accordance with 50 CFR 424.12(a)(1) that it is not prudent to designate critical habitat for the eastern massasauga rattlesnake (see Critical Habitat, below, for a full discussion).

    (26) Comment: One commenter stated that a rattlesnake does not contribute meaningfully to its ecosystem; thus, the Service should focus on more important and less loathsome species.

    Our Response: While the eastern massasauga rattlesnake is a venomous species, and we are aware that this is a reason some people may fear it, the species is considered to be among the more shy and docile species of North American rattlesnakes. Eastern massasauga rattlesnakes are known to eat voles, mice, other small mammals, small birds, amphibians, and even other species of snakes. Predatory birds (such as hawks) and mammals (such as raccoons) are also known to prey on eastern massasauga rattlesnakes. Thus, they do have a function within ecosystems where they occur. Finally, there are no provisions in the Act that allow us to distinguish between species that are popular and those that are disliked. We used the best available scientific and commercial data to determine that the eastern massasauga rattlesnake warrants listing as a threatened species.

    (27) Comment: One commenter stated that public education will be an important component of conservation for the eastern massasauga rattlesnake.

    Our Response: We thank the commenter and agree with this statement. We are aware that, under rare circumstances, bites from a venomous snake, such as the eastern massasauga rattlesnake, could present some risk to human health and safety. We are also aware that this is a reason why some people fear the eastern massasauga rattlesnake. Since the species became a candidate for listing in 1999, the Service has worked closely with our partners to provide outreach through producing or funding print and digital outreach materials, providing staff as speakers, and also responding to questions from the media pertaining to this species. Following listing (see DATES, above), this need will not change, and it is our intent to continue to work with partners to ensure that current information on the role played by this species is available to the public.

    (28) Comment: The Illinois Farm Bureau expressed concern that “certain pesticide use” was included in the proposed rule as an activity that may “result in a violation of section 9 of the Act.” They stated that the SSA report does not provide supporting evidence that pesticides are a stressor. They requested that “certain pesticide use” be removed from the list of activities that may result in a violation of section 9.

    Our Response: Based on this comment, we took a closer look at the risk to the species associated with pesticide use and have removed “certain pesticide use” from the list of activities that may result in a violation of section 9 of the Act under the Available Conservation Measures section of this final rule. We included pesticide use in the original list of potential threats due to the potential for impacts to populations of burrowing crayfishes upon which the eastern massasauga rattlesnake relies (by hibernating in the burrows of these crayfish); however, this link is not strongly substantiated. If additional supporting information is found that pesticides may pose a threat to the burrowing crayfishes and the eastern massasauga rattlesnake, we may again recognize this in the future. We note that any determination of whether an activity results in prohibited “take” of an eastern massasauga rattlesnake is case-specific and independent of our discussion in the proposed or final listing rules.

    (29) Comment: The Illinois Farm Bureau requested that, as an important stakeholder, they should be involved in a “robust stakeholder engagement process” to develop best management practices (BMPs) and avoidance measures that protect the eastern massasauga rattlesnake.

    Our Response: Extant populations of the eastern massasauga rattlesnake are now extremely rare in Illinois (perhaps fewer than six populations remaining), and occur primarily on public conservation lands. This, in turn, makes encounters with this species in Illinois very rare. However, several core areas occupied by the remaining Illinois populations are adjacent to private lands that are in agricultural use. Because of this, we believe it is important to remaining engaged with the Illinois Farm Bureau and potentially affected private landowners as stakeholders. We will also work closely to follow the lead of the Illinois Department of Natural Resources, which has a successful track record of working with private land owners (including farmers) in areas where eastern massasauga rattlesnakes occur to increase awareness of the conservation challenges faced by this species.

    (30) Comment: FirstEnergy commented that the eastern massasauga rattlesnake is of interest to its 10 operating companies, as populations occur in their service area. They further commented that they use integrated vegetation management (IVM) to maintain grassland habitats within and along transmission corridors, thus providing ideal habitat for species like the eastern massasauga rattlesnake. They claimed that listing the eastern massasauga rattlesnake could have significant impacts on their operations in Pennsylvania and Ohio, from affecting new transmission line construction to routine transmission corridor maintenance, which could affect their ability to provide essential services to millions of people. They requested that, because maintenance and expansion of transmission corridors is beneficial to the conservation of the eastern massasauga rattlesnake (by managing succession), the Service consider a 4(d) rule specific to transmission corridors.

    Our Response: While a number of populations of the eastern massasauga rattlesnake are considered to be extant in Pennsylvania and Ohio, many of those populations occur in scattered locations. While the limits of the species' range depicted on the map (see Figure 1, above) give the appearance that this species is widespread, many actions that would be expected to affect the species where it does occur may, in reality, take place in areas where it does not. In cases where proximity to a known location is uncertain, the commenter, or similar entities, can contact the Service's Ecological Services field offices for clarification and to address specific issues related to their needs. Also, in cases where an action is regulated or permitted by another Federal agency (for example the Federal Energy Regulatory Commission (FERC)), consultation with the Service under section 7(a)(2) of the Act would also provide opportunities to determine best management practices in the event that the action may affect the species. There are other provisions of the Act that allow for the consideration of such management actions on a case-by-case basis; thus issuance of a species-specific 4(d) rule is not appropriate.

    (31) Comment: A county government agency (Forest Preserve District of Will County, Illinois) stated that their land holdings include a now-extirpated population of eastern massasauga rattlesnake and provided supporting information. They also stated that they hoped listing would allow additional conservation efforts and possible reintroduction into previously occupied lands.

    Our Response: We considered the best available data, including historical occurrences and the knowledge of local species experts, in conducting our SSA, and we also considered the population in Will County, Illinois, to be extirpated. We thank the commenter for providing additional information specific to surveys that led to this location being considered extirpated. We have incorporated that additional information into our revised SSA report. We will consider a range of recovery actions following listing and will work with local and State partners to determine and implement actions that would have the most benefit to the species.

    (32) Comment: An individual reports having seen two eastern massasauga rattlesnakes in New Brunswick, Canada, but the commenter did not provide any documentation or supporting evidence.

    Our Response: We considered the best available data, including historical occurrences and the knowledge of local species experts, in this listing determination. Because the eastern massasauga rattlesnake also occurs in Canada, we coordinated with colleagues from the responsible Federal (Parks Canada) and Provincial (Ontario Ministry of Resources and Forestry) governments in Canada in compiling records used in our SSA. We are aware of no documented records of the eastern massasauga rattlesnake in New Brunswick, and, as such, we do not consider this area to be part of the species' historical range. If, however, the species is documented from localities outside of the range as we currently understand it, we will update our records accordingly.

    (33) Comment: One industry group urged the Service to endorse the integrated vegetation management (IVM) BMPs they implement, and expressed their strong belief that through close coordination between the Service and pipelines and utility companies utilizing IVM BMPs, they can help be part of the solution towards restoring populations of eastern massasauga rattlesnake.

    Our Response: We thank the commenter for their suggestion and look forward to working collaboratively with landowners and managers from the public, private, and industry sectors following listing. Also, while the eastern massasauga rattlesnake has a broad geographic range, in many cases extant populations occur in widely scattered locations. Thus, instances where populations actually do occur close to certain project areas may actually be fairly limited. In cases where proximity to a known location is uncertain, the commenter, or similar entities, can contact the Service's Ecological Services field offices for clarification and to proactively address specific issues related to their needs. Also, in cases where an action is authorized, funded, or carried out by another Federal agency (for example, FERC), consultation with the Service under section 7(a)(2) of the Act would also provide opportunities to determine best management practices in the event that the action may affect the species.

    (34) Comment: One commenter stated that fire management is an important component of maintaining habitat for the eastern massasauga rattlesnake. They further commented that prairie species, like the eastern massasauga rattlesnake, are adapted to fire; thus, if fire is used appropriately, individuals can easily move to safety and very few will be killed.

    Our Response: As stated in our response to Comment 1, above, we agree that the eastern massasauga rattlesnake is a species that occurs primarily within habitats that are dependent on periodic fires to maintain appropriate vegetative structure. Suppression of wildfires following European settlement has allowed degradation of many such plant communities through succession by woody vegetation, and land managers often use prescribed fire as a management technique to maintain these communities so that woody canopies are not established. However, because many of the remaining populations of the eastern massasauga rattlesnake are already small, and vulnerable to loss of individuals (Faust et al. 2011, pp. 59-60; Seigel and Shiel 1999, pp. 19-20), mortality resulting from prescribed fire was one of the most prominent stressors identified by Faust et al. (2011, pp. 12-16) and in the SSA. Please refer to our response to Comment 1, above, for more details regarding the use of prescribed fire.

    (35) Comment: One commenter recommended that the Service not issue any rules that would impinge upon the private property rights of individual citizens on non-public lands. They further stated that there is no need to set aside specific lands or take private property to benefit this species, and that private landowners should only be required to participate on a voluntary basis.

    Our Response: The Service works proactively with private landowners who want to voluntarily take measures to help conserve listed species on their property. We do not take private lands to benefit listed species. In cases where we acquire lands (for example, through fee-simple purchase, or through providing funding to our partners in State and local government, or to NGOs) to benefit listed species, it is the Service's policy that purchases be made from willing sellers, and that fair market price be paid. In cases where private landowners propose legal activities or uses of their lands that may lead to incidental take of listed species, the Act provides for mechanisms (such as habitat conservation plans) that allow interested parties to find collaborative ways to minimize and mitigate impacts to the species while still allowing them to proceed with their proposed activities. Similarly, if proposed land uses require actions (for example issuance of Federal permits) by other Federal agencies, section 7(a)(2) of the Act allows the action agency to consult with the Service to ensure that the action will not jeopardize listed species.

    (36) Comment: One commenter specified that it is imperative to keep people safe on public lands. Thus, they recommended that the State natural resource agencies have the clear ability to remove snakes from areas where there is a high likelihood the snakes will come into contact with people. Another commenter stated that the eastern massasauga rattlesnake poses a risk to livestock and pets in the summer months when the snakes are sunning themselves on roads, field edges, lawns, and rock piles. A third commenter added that listing the eastern massasauga rattlesnake will not protect it, as people who feel threatened by the snakes will continue to kill them and will not report it.

    Our Response: The Act includes provisions to allow flexibility to remove individual snakes from situations where they present a risk to human health or safety. These provisions include the potential for both lethal and nonlethal take, and the situations in which these options are permissible are discussed above under our response to Comment 13. We also note that non-harmful actions to encourage eastern massasauga rattlesnakes to leave, stay off, or keep out of areas with frequent human use, including a residence, yard, structure, sidewalk, road, trail, foot path, or campground, would not result in take and thus are not prohibited. For example, maintenance of mowed lawn in areas of regular human use to discourage eastern massasauga rattlesnakes from entering these areas is acceptable.

    (37) Comment: One commenter stated that Sistrurus catenatus populations east of the Mississippi are divided into two genetic units: a “western” unit consisting of individuals from populations in Illinois and Wisconsin and an “eastern” unit consisting of all other populations. The commenter stated that these populations are weakly phylogenetically distinct from each other and historical modeling suggests that eastern populations are derived from western populations through a post-glacial colonization process. The “western” unit is roughly comparable to the “western” unit proposed by Ray et al. (2013, entire), while the “eastern” unit is consistent with the “central and eastern” units proposed by Ray et al. (2013, entire). The same commenter provided data based on genetic analysis of tissue samples from eastern massasauga rattlesnakes from northeast Iowa, indicating that snakes in the sampled population are genetically distinct from other eastern massasauga rattlesnake populations. Those data indicate that snakes in this population are of hybrid origin consisting of a mixture of approximately 80 percent genetic markers specific to the eastern massasauga rattlesnake and 20 percent genetic markers specific to the western massasauga rattlesnake (Sistrurus tergeminus). The commenter further stated that modeling indicates that they originated through a historical hybridization event between these species within the last 10,000 years, likely as a result of shifting species distributions due to post-glacial environmental effects. The commenter stated that the conservation status of these northeast Iowa populations should be assessed.

    Our Response: We appreciate the information provided on the emerging science on genetics and taxonomy of eastern massasauga rattlesnakes. We hope to continue the close working relationship with the commenter as the science advances. The data on genetic haplotypes described by Ray et al. (2013, entire) have been peer-reviewed and published. Furthermore, these haplotypes are current recognized by the American Zoological Association in managing their captive populations. Thus, we used the genetic haplotypes of Ray et al. (2013, entire) to delineate our analysis units into a western analysis unit, a central analysis unit, and an eastern analysis unit. We understand that the commenter is also researching this topic and has stated intent to publish it in a peer-reviewed journal. The Act requires us to use the best available data in decision making, and we hope to continue the close working relationship with the commenter as the genetic science on the species advances.

    With regard to the detection of possible past hybridization in the Iowa population, we thank this commenter for providing new information. Since this comment was submitted, we have discussed this topic further with the commenter. Because the population in question is comprised primarily of genetic markers of the eastern massasauga rattlesnake, we still consider the northeast Iowa individuals to be eastern massasauga rattlesnakes.

    (38) Comment: The Nature Conservancy's Indiana Office provided an overview of the status of eastern massasauga rattlesnake populations at sites they own in Indiana and that historically supported the species.

    Our Response: We thank the commenter for providing additional information on the historical occurrence of the eastern massasauga rattlesnake on their land holdings, and we have added it to information gathered from the Natural Heritage Database as provided by the Indiana Department of Natural Resources so that it may augment our data on the species.

    (39) Comment: One commenter stated that there is no evidence that the eastern massasauga rattlesnake existed in Missouri, and that populations in eastern Missouri should be considered as western massasauga rattlesnakes, a different species. The commenter stated that populations of the eastern massasauga rattlesnakes occurring east of the Mississippi River warrant protection.

    Our Response: In evaluating the taxonomy and distribution of the eastern massasauga rattlesnake, we considered the best available scientific information (see pages 8-9 of the SSA report). While recent genetic studies showed that extant populations in central and northwestern Missouri belong to the western massasauga rattlesnake (Sistrurus tergeminus), no useful tissues from snakes in extreme eastern Missouri (St. Louis and Warren Counties) were available to the researchers for inclusion in the genetic studies because those populations are likely extirpated. This was confirmed during coordination between the Service and the responsible State fish and wildlife management agency (Missouri Department of Conservation). However, published studies on phenotypic variation (especially color pattern) of massasauga rattlesnakes from throughout Missouri—including the historical, but now likely extirpated populations in extreme eastern Missouri—indicate that the latter populations could be phenotypically included within the eastern massasauga rattlesnake. Recently extirpated, historical populations of the eastern massasauga rattlesnake were known from the adjacent part of Illinois, less than 19 miles (30 kilometers) from the historical eastern Missouri populations. In addition, genetic studies of massasauga rattlesnakes in Iowa indicate that the eastern massasauga genotype is present there (though these are also of likely past hybridization), well west of the Mississippi River. In the absence of better information on the taxonomic identity of the likely extirpated massasauga populations in extreme eastern Missouri, we have included those populations within the historical range of the eastern massasauga rattlesnake.

    (40) Comment: One commenter stated that the eastern massasauga rattlesnake is more prevalent than MI DNR or the Service estimate and that the species is common in northern Michigan.

    Our Response: It is widely recognized that Michigan still harbors a greater number of extant populations of the eastern massasauga rattlesnake than any of the other nine States and the one Canadian Province where the species occurred historically. We coordinated with our partner State fish and wildlife agencies, consulted the most current information from Natural Heritage Databases, and solicited information from species experts for each State and for Ontario to compile the most current data on the species. In addition to these scientific sources, we sought out public comment and data through the proposed listing rule's public comment period. In Michigan specifically, MNFI houses the Natural Heritage Database; they, among others, provided input on the Michigan populations. Based on these data, historically and currently, Michigan harbors a greater number of extant populations than any of the other nine States and Ontario. There are 259 known populations of eastern massasauga rattlesnake in Michigan; this is 46 percent of all known populations rangewide. Of these, 158 (61 percent) are believed to persist today and another 47 have unknown status; the Michigan populations represent 59 percent of all known extant populations rangewide. Thus, compared to other localities, the eastern massasauga rattlesnake was historically and continues to be more prevalent in Michigan than in any other State. We acknowledge that there may still be some undocumented populations remaining, especially in Michigan. We recommend that individuals with specific knowledge of populations contact MNFI to ensure the locations of eastern massasauga rattlesnake are known.

    (41) Comment: Several commenters stated that the species should be listed as endangered rather than threatened, but did not provide further rationale or new evidence in support of this recommendation.

    Our Response: For reasons discussed in the Determination section of this final rule, the Service has determined that the eastern massasauga rattlesnake meets the Act's definition of a threatened species, rather than an endangered species.

    Determination

    Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on: (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. Listing actions may be warranted based on any of the above threat factors, singly or in combination.

    We have carefully assessed the best scientific and commercial data available regarding the past, present, and predicted future condition of the eastern massasauga rattlesnake and how threats are affecting the species now and into the future. The species faces an array of threats that have and will likely continue (often increasingly) to contribute to declines at all levels (individual, population, and species). The loss of habitat was historically, and continues to be, the threat with greatest impact to the species (Factor A), either through development or through changes in habitat structure due to vegetative succession. Disease, new or increasingly prevalent, is another emerging and potentially catastrophic threat to eastern massasauga rattlesnake populations (Factor C) that is likely to affect the species in the foreseeable future. As population sizes decrease, localized impacts, such as collection and persecution of individuals, also increases the risk of extinction (Factor B). These stressors are chronic and are expected to continue with a similar magnitude of impact into the future. Additionally, this species is vulnerable to the effects of climate change through increasing intensity of winter droughts and increasing risk of summer floods (Factor E), particularly in the southwestern part of its range (Pomera et al. undated, unpaginated; Pomera et al. 2014, pp. 95-97).

    Some conservation actions (for example, management of invasive species and woody plant encroachment, timing prescribed fires to avoid the active season) are currently in place, and provide protection and enhancement to some eastern massasauga rattlesnake populations (see pp. 43-45 in the SSA report for a full discussion). However, our analysis projects that eastern massasauga rattlesnake populations will continue to decline even if current conservation measures are continued into the future. As a result of these factors, the number and health of eastern massasauga rattlesnake populations are anticipated to decline across the species' range, particularly in the southwestern portions of the range, where large losses relative to historical conditions have already occurred.

    Further, the reductions in eastern massasauga rattlesnake population numbers, distribution, and health forecast in the SSA report likely represent an overly optimistic scenario for the species, and future outcomes may be worse than predicted. Because of the type of information available to us, the quantitative analysis assumes that threat magnitude and pervasiveness remain constant into the future, but it is more likely that the magnitude of threats will increase into the future throughout the range of the species (for example, the frequency of drought and flooding events are likely to increase) or that novel threats (for example, new pathogens) may arise. In addition, some currently identified threats are not included in the quantitative analysis (for example, disease, road mortality, persecution/collection, and impacts from climate change), because we lack specific, quantitative information on how these factors may affect the species in the future. These factors and their potential effects on the eastern massasauga rattlesnake were discussed and considered qualitatively as part of the determination.

    The species' viability is also affected by losses of populations from historical portions of its range, which may have represented unique genetic and ecological diversity. The species is extirpated from Minnesota and Missouri, and many populations have been lost in the western part of the species' range. Rangewide, the extent of occurrence is predicted to decline by 80 percent by year 50. Actual losses in extent of occurrence will likely be greater than estimated because of the methodology used in our analysis, as discussed above.

    The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” A key statutory difference between an endangered species and a threatened species is the timing of when a species may be in danger of extinction, either now (endangered species) or in the foreseeable future (threatened species). Based on the biology of the eastern massasauga rattlesnake and the degree of uncertainty of future predictions, we find that the “foreseeable future” for the species is best defined as 50 years. Forecasting to 50 years, the current threats are still reliably foreseeable at the end of that time span based on models, available information on threats impacting the species, and other analyses; however, we cannot reasonably predict future conditions for the species beyond 50 years. Our uncertainty in forecasting the status of the species beyond 50 years is also increased by our methodology of extrapolating from a subset of modeled populations to all extant or potentially extant populations.

    We find that the eastern massasauga rattlesnake is likely to become endangered throughout its entire range within the foreseeable future based on the severity and pervasiveness of threats currently impacting the species, the projected loss of populations rangewide (loss of resiliency and redundancy), and the projected loss of its distribution within large portions of its range. This loss in distribution could represent a loss of genetic and ecological adaptive diversity, as well as a loss of populations from parts of the range that may provide future refugia in a changing climate. Furthermore, many of the currently extant populations are experiencing high magnitude threats. Although these high magnitude threats are not currently pervasive rangewide, they are likely to become pervasive in the foreseeable future as they expand and impact additional populations throughout the species' range. Therefore, on the basis of the best available scientific and commercial data, we determine that the eastern massasauga rattlesnake is likely to become an endangered species within the foreseeable future throughout all of its range, and, thus, we are listing it as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.

    We find that an endangered species status is not appropriate for the eastern massasauga rattlesnake. In assessing whether the species is in danger of extinction, we used the plain language understanding of this phrase as meaning “presently in danger of extinction.” We considered whether extinction is a plausible condition as the result of the established, present condition of the eastern massasauga rattlesnake. Based on the species' present condition, we find that the species is not currently in danger of extinction. The timeframe for conditions that render the species to be in danger of extinction is beyond the present. While the magnitude of threats affecting populations is high, threats are not acting at all sites at a sufficient magnitude to result in the species presently being in danger of extinction. Additionally, some robust populations still exist, and we anticipate they will remain self-sustaining.

    The SSA results likely represent an overly optimistic scenario for this species (see pp. 87-88 of the SSA report for a list of assumptions and their expected effect). For example, the analysis treated populations of unknown status as if they were all extant, likely resulting in an overestimate of species' viability. Thus, we considered whether treating the populations with an “unknown” status as currently extant in the analysis had an effect on the status determination. We examined whether the number of self-sustaining populations would change significantly over time if we instead assumed that all populations with an “unknown” status were extirpated. The results are a more severe projected decline in the eastern massasauga rattlesnake's status than our analysis projects when we assign the unknown status populations to the “extant” category, but not to the extent that we would determine the species to be currently in danger of extinction.

    Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or is likely to become so throughout all or a significant portion of its range. Because we have determined that the eastern massasauga rattlesnake is likely to become in danger of extinction within the foreseeable future throughout all of its range, no portion of its range can be “significant” for purposes of the definitions of “endangered species” and “threatened species.” See the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014).

    Critical Habitat Background

    Critical habitat is defined in section 3 of the Act as:

    (1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features:

    (a) Essential to the conservation of the species, and

    (b) Which may require special management considerations or protection; and

    (2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.

    Our regulations at 50 CFR 424.02 define the geographical area occupied by the species as: An area that may generally be delineated around species' occurrences, as determined by the Secretary (i.e., range). Such areas may include those areas used throughout all or part of the species' life cycle, even if not used on a regular basis (for example, migratory corridors, seasonal habitats, and habitats used periodically, but not solely by vagrant individuals).

    Conservation, as defined under section 3 of the Act, means to use, and the use of, all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

    Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Critical habitat designation does not allow the government or public to access private lands, nor does it require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the Federal agency would be required to consult with the Service under section 7(a)(2) of the Act, but even if consultation leads to a finding that the action would likely cause destruction or adverse modification of critical habitat, the resulting obligation of the Federal action agency and the landowner is not to restore or recover the species, but rather to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

    Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features, we focus on the specific features that support the life-history needs of the species, including but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.

    Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed if we determine that such areas are essential for the conservation of the species. We will determine whether unoccupied areas are essential for the conservation of the species by considering the life-history, status, and conservation needs of the species. This will be further informed by any generalized conservation strategy, criteria, or outline that may have been developed for the species to provide a substantive foundation for identifying which features and specific areas are essential to the conservation of the species and, as a result, the development of the critical habitat designation. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation.

    Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines, provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available. For example, they require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

    When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information from the SSA and information developed during the listing process for the species. Additional information sources may include any generalized conservation strategy, criteria, or outline that may have been developed for the species, the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, other unpublished materials, or experts' opinions or personal knowledge.

    Habitat is dynamic, and species may move from one area to another over time. We recognize that critical habitat designated at a particular point in time may not include all of the habitat areas that we may later determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not be needed for recovery of the species. Areas that are important to the conservation of the species, both inside and outside the critical habitat designation, will continue to be subject to: (1) Conservation actions implemented under section 7(a)(1) of the Act, (2) regulatory protections afforded by the requirement in section 7(a)(2) of the Act for Federal agencies to ensure their actions are not likely to jeopardize the continued existence of any endangered or threatened species, and (3) section 9 of the Act's prohibitions on taking any individual of the species, including taking caused by actions that affect habitat. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. These protections and conservation tools will continue to contribute to recovery of this species. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if new information available at the time of these planning efforts calls for a different outcome.

    Prudency Determination

    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, we 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 determining whether a designation would not be beneficial, the factors the Service may consider include but are not limited to: Whether the present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or whether any areas meet the definition of “critical habitat.” In our proposed listing rule, we determined that both of the above circumstances applied to the eastern massasauga rattlesnake. However, under our updated critical habitat regulations at 50 CFR 424.12 (81 FR 7414; February 11, 2016), we cannot conclude that critical habitat designation would not be beneficial to the species because we have found that there are threats to the species' habitat (the present or threatened destruction, modification, or curtailment of its habitat or range (Factor A) is a threat to the species). However, we still find that designation of critical habitat is not prudent under the first circumstance because we have determined that the eastern massasauga rattlesnake is threatened by taking or other human activity and that identification of critical habitat can be expected to increase the degree of threat to the species.

    Overutilization in the form of poaching and unauthorized collection (Factor B) of the eastern massasauga rattlesnake for the pet trade is a factor contributing to declines, and remains a threat with significant impact to this species, which has high black market value. For example, an investigation into reptile trafficking reports documented 35 eastern massasauga rattlesnakes (representing nearly one entire wild source population) collected in Canada and smuggled into the United States, most destined for the pet trade (Thomas 2010, unpaginated). Snakes in general are known to be feared and persecuted by people, and venomous species even more so (Ohman and Mineka 2003, p. 7; Whitaker and Shine 2000, p. 121). As a venomous snake, the eastern massasauga rattlesnake is no exception, with examples of roundups or bounties for them persisting through the mid-1900s (Bushey 1985, p. 10; Vogt 1981; Wheeling, IL, Historical Society Web site accessed 2015), and more recent examples of persecution in Pennsylvania (Jellen 2005, p. 11) and Michigan (Baily et al. 2011, p. 171). The process of designating critical habitat would increase human threats to the eastern massasauga rattlesnake by increasing the vulnerability of this species to unauthorized collection and trade, or to persecution, through public disclosure of its locations. Designation of critical habitat requires the publication of maps and a specific narrative description of critical habitat in the Federal Register. The degree of detail in those maps and boundary descriptions is far greater than the general location descriptions provided in this final rule to list the species as a threatened species. Furthermore, a critical habitat designation normally results in the news media publishing articles in local newspapers and special interest Web sites, usually with maps of the critical habitat. We have determined that the publication of maps and descriptions outlining the locations of this species would further facilitate unauthorized collection and trade, as collectors would know the exact locations where eastern massasauga rattlesnakes occur. While eastern massasauga rattlesnakes are cryptic in coloration, they can still be collected in high numbers during certain parts of their active seasons (for example, spring egress from hibernation or summer gestation). Also, individuals of this species are often slow-moving and have small home ranges. Therefore, publishing specific location information would provide a high level of assurance that any person going to a specific location would be able to successfully locate and collect specimens, given the species' site fidelity and ease of capture once located. Due to the threat of unauthorized collection and trade, a number of biologists working for State and local conservation agencies that manage populations of eastern massasauga rattlesnakes have expressed to the Service serious concerns with publishing maps and boundary descriptions of occupied habitat areas that could be associated with critical habitat designation (Redmer 2015, pers. comm.). Designating critical habitat could negate the efforts of State and local conservation agencies to restrict access to location information that could significantly affect future efforts to control the threat of unauthorized collection and trade and persecution of eastern massasauga rattlesnakes.

    Summary of Prudency Determination

    We have determined that designating critical habitat for the eastern massasauga rattlesnake is not prudent. Designation of critical habitat would increase the threats to the eastern massasauga rattlesnake from persecution and unauthorized collection and trade. A limited number of U.S. species listed under the Act have commercial value in trade. The eastern massasauga rattlesnake is one of them. Due to the market demand and willingness of individuals to collect eastern massasauga rattlesnakes without authorization, and the willingness of others to kill them out of fear or wanton dislike, we have determined that any action that publicly discloses the location of eastern massasauga rattlesnakes (such as critical habitat) puts the species in further peril. Many populations of the eastern massasauga rattlesnake are small, and the life history of the species makes it vulnerable to additive loss of individuals (for example, loss of reproductive adults in numbers that would exceed those caused by predation and other non-catastrophic natural factors), requiring a focused and comprehensive approach to reducing threats. One of the basic measures to protect eastern massasauga rattlesnakes from unauthorized collection and trade is restricting access to information pertaining to the location of the species' populations. Publishing maps and narrative descriptions of eastern massasauga rattlesnake critical habitat would significantly affect our ability to reduce the threat of persecution, as well as unauthorized collection and trade. We have, therefore, determined in accordance with 50 CFR 424.12(a)(1) that it is not prudent to designate critical habitat for the eastern massasauga rattlesnake.

    Available Conservation Measures

    Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. The recognition of a species, 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 requires that recovery actions be carried out for all 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 address 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 draft and final recovery plan. 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. When completed, the draft recovery plan and the final recovery plan will be available on our Web site (http://www.fws.gov/endangered), or from our Chicago Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. 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 (for example, restoration of native vegetation) and management, 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.

    Following publication of this final rule, 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 States of Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, New York, Ohio, Pennsylvania, and Wisconsin will be eligible for Federal funds to implement management actions that promote the protection or recovery of the eastern massasauga rattlesnake. 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 the eastern massasauga rattlesnake. Additionally, we invite you to submit any new information on this species 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 any endangered or threatened species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.

    Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the Service (Upper Mississippi National Wildlife and Fish Refuge, Wisconsin), U.S. Forest Service (Huron-Manistee National Forest, Michigan), National Park Service (Indiana Dunes National Lakeshore, Indiana), or military lands administered by branches of the Department of Defense (Fort Grayling, Michigan); flood control projects (Lake Carlyle, Illinois) and 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 maintenance of roads or highways by the Federal Highway Administration; and construction and maintenance of pipelines or rights-of-way for transmission of electricity, and other energy related projects permitted or administered by the Federal Energy Regulatory Commission.

    Under section 4(d) of the Act, the Service has discretion to issue regulations that we find necessary and advisable to provide for the conservation of threatened species. The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to threatened wildlife. The prohibitions of section 9(a)(1) of the Act, as applied to threatened wildlife and codified at 50 CFR 17.31, make it illegal for any person subject to the jurisdiction of the United States to take (including harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) threatened wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

    We may issue permits to carry out otherwise prohibited activities involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, for economic hardship, for zoological exhibition, for educational purposes, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

    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 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 listed species. Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act; this list is not comprehensive:

    (1) Development of land or the conversion of native land to agricultural land, including the construction of any related infrastructure (for example, roads, bridges, railroads, pipelines, utilities) in occupied eastern massasauga rattlesnake habitat;

    (2) Certain dam construction: In an area where the dam alters the habitat from native land types (for example, grassland, swamp, fen, bog, wet prairie, sedge meadow, marshland, peatland, floodplain forest, coniferous forest) causing changes in hydrology at hibernacula or where the dam causes fragmentation that separates snakes from hibernacula or gestational sites;

    (3) Post-emergent prescribed fire: Prescribed burns to control vegetation that are conducted after snakes have emerged from their hibernacula and are thus exposed to the fire;

    (4) Post-emergent mowing for habitat management: Mowing of vegetation after snakes have emerged from hibernacula can cause direct mortality by contact with blades or being run over by tires on mower;

    (5) Water level manipulation: Flooding or hydrologic drawdown affecting eastern massasauga rattlesnake individuals or habitat, particularly hibernacula;

    (6) Certain research activities: Collection and handling of eastern massasauga rattlesnake individuals for research that may result in displacement or death of the individuals; and

    (7) Poaching, collecting, or persecuting individuals.

    Based on the best available information, the following actions are unlikely to result in a violation of section 9 of the Act, if these activities are carried out in accordance with existing regulations and permit requirements; this list is not comprehensive:

    (1) Pre-emergent fire: Prescribed burns to control vegetation occurring prior to eastern massasauga rattlesnake emergence from hibernacula (typically in late March to early April); and

    (2) Pre-emergent mowing or other mechanical vegetation removal: Mowing or cutting of vegetation prior to eastern massasauga rattlesnake emergence from hibernacula.

    Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Chicago Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    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 (NEPA; 42 U.S.C. 4321 et seq.), 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 Chicago Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT).

    Authors

    The primary authors of this final rule are staff members of the Midwest Regional 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 set forth below:

    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 § 17.11(h) by adding an entry for “Rattlesnake, eastern massasauga” to the List of Endangered and Threatened Wildlife in alphabetical order under REPTILES to read as follows:
    § 17.11 Endangered and threatened wildlife.

    (h) * * *

    Common name Scientific name Where listed Status Listing citations and
  • applicable rules
  • *         *         *         *         *         *         * Reptiles *         *         *         *         *         *         * Rattlesnake, eastern massasauga Sistrurus catenatus Wherever found T [Insert Federal Register citation]; 9/30/16. *         *         *         *         *         *         *
    Dated: September 21, 2016. Stephen Guertin, Acting Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2016-23538 Filed 9-29-16; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 100812345-2142-03] RIN 0648-XE896 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; 2016 Commercial Accountability Measures and Closure for South Atlantic Greater Amberjack AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS implements accountability measures (AMs) for commercial greater amberjack in the exclusive economic zone (EEZ) of the South Atlantic. NMFS projects commercial landings of greater amberjack will reach the commercial annual catch limit (ACL) by October 4, 2016. Therefore, NMFS closes the commercial sector for greater amberjack in the South Atlantic EEZ on October 4, 2016, and it will remain closed until the start of the next fishing year on March 1, 2017. This closure is necessary to protect the greater amberjack resource.

    DATES:

    This rule is effective at 12:01 a.m., local time, October 4, 2016, until 12:01 a.m., local time, March 1, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Mary Vara, NMFS Southeast Regional Office, telephone: 727-824-5305, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The snapper-grouper fishery of the South Atlantic includes greater amberjack and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The FMP was prepared by the South Atlantic Fishery Management 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 commercial ACL for greater amberjack is equivalent to the commercial quota. The commercial quota for greater amberjack in the South Atlantic is 769,388 lb (348,989 kg), gutted weight, as specified in 50 CFR 622.190(a)(3).

    Under 50 CFR 622.193(k)(1), NMFS is required to close the commercial sector for greater amberjack when the commercial ACL (commercial quota) is reached, or is projected to be reached, by filing a notification to that effect with the Office of the Federal Register. NMFS projects that commercial landings of South Atlantic greater amberjack will reach the commercial ACL by October 4, 2016. Accordingly, the commercial sector for South Atlantic greater amberjack is closed effective at 12:01 a.m., local time, October 4, 2016, until 12:01 a.m., local time, March 1, 2017.

    The operator of a vessel with a valid Federal commercial vessel permit for South Atlantic snapper-grouper with greater amberjack on board must have landed and bartered, traded, or sold such greater amberjack prior to 12:01 a.m., local time, October 4, 2016. During the commercial closure, harvest and possession of greater amberjack in or from the South Atlantic EEZ is limited to the bag and possession limits, as specified in § 622.187(b)(1) and (c)(1). Also during the commercial closure, the sale or purchase of greater amberjack taken from the South Atlantic EEZ is prohibited. The prohibition on sale or purchase does not apply to the sale or purchase of greater amberjack that were harvested, landed ashore, and sold prior to 12:01 a.m., local time, October 4, 2016, and were held in cold storage by a dealer or processor, as specified in § 622.190(c)(1)(i).

    For a person on board a vessel issued a valid Federal commercial or charter vessel/headboat permit for the South Atlantic snapper-grouper fishery, the bag and possession limits and the sale and purchase provisions of the commercial closure for greater amberjack apply regardless of whether the fish are harvested in state or Federal waters, as specified in 50 CFR 622.190(c)(1)(ii).

    Classification

    The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of greater amberjack and the South Atlantic snapper-grouper fishery and is consistent with the Magnuson-Stevens Act and other applicable laws.

    This action is taken under 50 CFR 622.193(k)(1) and is exempt from review under Executive Order 12866.

    These measures are exempt from the procedures of the Regulatory Flexibility Act, because the temporary rule is issued without opportunity for prior notice and comment.

    This action responds to the best scientific information available. The Assistant Administrator for NOAA Fisheries (AA) finds that the need to immediately implement this action to close the commercial sector for greater amberjack constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment pursuant to the authority set forth in 5 U.S.C. 553(b)(B), as such procedures would be unnecessary and contrary to the public interest. Such procedures are unnecessary because the AMs have already been subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect greater amberjack since the capacity of the fishing fleet allows for rapid harvest of the commercial ACL (commercial quota). Prior notice and opportunity for public comment would require time and would potentially result in a harvest well in excess of the established commercial ACL (commercial quota).

    For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: September 26, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-23587 Filed 9-29-16; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 150818742-6210-02] RIN 0648-XE922 Fisheries of the Exclusive Economic Zone Off Alaska; Big Skate in the Central Regulatory Area of the Gulf of Alaska AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Temporary rule; closure.

    SUMMARY:

    NMFS is prohibiting retention of big skate in the Central Regulatory Area of the Gulf of Alaska (GOA). This action is necessary because the 2016 total allowable catch of big skate in the Central Regulatory Area of the GOA will be reached.

    DATES:

    Effective 1200 hours, Alaska local time (A.l.t.), September 29, 2016, through 2400 hours, A.l.t., December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Obren Davis, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

    The 2016 total allowable catch (TAC) of big skate in the Central Regulatory Area of the GOA is 1,850 metric tons (mt) as established by the final 2016 and 2017 harvest specifications for groundfish of the GOA (81 FR 14740, March 18, 2016).

    In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2016 TAC of big skate in the Central Regulatory Area of the GOA will be reached. Therefore, NMFS is requiring that big skate in the Central Regulatory Area of the GOA be treated as prohibited species in accordance with § 679.21(b).

    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay prohibiting the retention of big skate in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 27, 2016.

    The AA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.

    This action is required by § 679.20 and § 679.21 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: September 28, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-23830 Filed 9-28-16; 4:15 pm] BILLING CODE 3510-22-P
    81 190 Friday, September 30, 2016 Proposed Rules DEPARTMENT OF LABOR 2 CFR Part 2998 29 CFR Parts 95 and 98 RIN 1291-AA38 Department of Labor Implementation of OMB Guidance on Nonprocurement Debarment and Suspension; Withdrawal AGENCY:

    Office of the Assistant Secretary for Administration and Management, Department of Labor (OASAM), Department of Labor.

    ACTION:

    Withdrawal of proposed rule.

    SUMMARY:

    On April 29, 2016, the Department of Labor, Office of the Assistant Secretary for Administration and Management (OASAM) simultaneously published in the Federal Register a notice of proposed rulemaking and a direct final rule to implement OMB Guidance on Nonprocurement Debarment and Suspension. The comment period for both the proposed rule and direct final rule ended on May 31, 2016, with no comments received. For this reason, OASAM is withdrawing the proposed rule.

    DATES:

    The proposed rule that was published on April 29, 2016 (81 FR 25620) is withdrawn as of September 30, 2016.

    ADDRESSES:

    Electronic copies of this Federal Register notice are available at http://www.regulation.gov.

    FOR FURTHER INFORMATION CONTACT:

    Duyen Tran Ritchie, Office of the Chief Procurement Officer, (202) 693-7277 [Note: This is not a toll-free telephone number]; or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    On April 29, 2016 (81 FR 25620), OASAM published a proposed rule in the Federal Register to implement OMB Guidance on Nonprocurement Debarment and Suspension. The proposed rule is withdrawn as of September 30, 2016.

    List of Subjects 2 CFR Part 2998

    Administrative practice and procedure, Government procurement, Grant programs, Grants administration, Reporting and recordkeeping requirements.

    29 CFR Part 95

    Foreign governments, Grants and agreements with institutions of higher education, hospitals, and other non-profit organizations, and with commercial organizations, Organizations under the jurisdiction of foreign governments, and International organizations.

    29 CFR Part 98

    Governmentwide debarment and suspension (nonprocurement).

    Authority and Signature

    T. Michael Kerr, Assistant Secretary of Labor for Administration and Management, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210, authorized the preparation of this withdrawal of the proposed rule.

    Dated: September 16, 2016. T. Michael Kerr, Assistant Secretary for Administration and Management.
    [FR Doc. 2016-23427 Filed 9-29-16; 8:45 am] BILLING CODE 4510-7B-P
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