Federal Register Vol. 81, No.201,

Federal Register Volume 81, Issue 201 (October 18, 2016)

Page Range71571-71975
FR Document

81_FR_201
Current View
Page and SubjectPDF
81 FR 71639 - Atlantic Highly Migratory Species; Atlantic Bluefin Tuna FisheriesPDF
81 FR 71573 - Coordinating Efforts To Prepare the Nation for Space Weather EventsPDF
81 FR 71571 - Charitable FundraisingPDF
81 FR 71763 - Government in the Sunshine Act Meeting NoticePDF
81 FR 71717 - Sunshine Act Meeting NoticePDF
81 FR 71765 - Certain Computer Cables, Chargers, Adapters, Peripheral Devices and Packaging Containing the Same; Issuance of a Limited Exclusion Order; Termination of the InvestigationPDF
81 FR 71709 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Fisheries ResearchPDF
81 FR 71712 - Availability of the Fiscal Year 2015 Inventory of Contracted ServicesPDF
81 FR 71791 - Submission for OMB Review; Comment RequestPDF
81 FR 71612 - Drawbridge Operation Regulation; Atlantic Intracoastal Waterway (AIWW), Wrightsville Beach, NC and Northeast Cape Fear River, Wilmington, NCPDF
81 FR 71711 - Information Collection Requirement; Defense Federal Acquisition Regulation Supplement (DFARS); Administrative MattersPDF
81 FR 71790 - Hazardous Materials: International Standards on the Transport of Dangerous GoodsPDF
81 FR 71760 - Minor Boundary Revision at Big Thicket National PreservePDF
81 FR 71705 - Steel Concrete Reinforcing Bar From the Republic of Turkey: Initiation of Countervailing Duty InvestigationPDF
81 FR 71750 - Implementation of the Privacy Act of 1974, as Amended; Notice Amendment for Computerized Homes Underwriting Management System/Loan Application Management SystemPDF
81 FR 71762 - Abbreviated Final Environmental Impact Statement for the Fire Island National Seashore General Management PlanPDF
81 FR 71755 - 30-Day Notice of Proposed Information Collection: HOME Investment Partnership ProgramPDF
81 FR 71724 - Access to Confidential Business Information by Abt Associates, Inc. and Its Identified Subcontractor, Versar, Inc.PDF
81 FR 71702 - Application(s) for Duty-Free Entry of Scientific InstrumentsPDF
81 FR 71703 - Certain Uncoated Paper From Portugal: Initiation and Preliminary Results of Antidumping Duty Changed Circumstances ReviewPDF
81 FR 71697 - Steel Concrete Reinforcing Bar From Japan, Taiwan and the Republic of Turkey: Initiation of Less-Than-Fair-Value InvestigationsPDF
81 FR 71784 - Regional Meeting of the Binational Bridges and Border Crossings Group in San Diego, CaliforniaPDF
81 FR 71613 - Participation by Disadvantaged Business Enterprises in Procurements Under EPA Financial Assistance AgreementsPDF
81 FR 71725 - Proposed Prospective Purchaser Agreement for the Willow Run Powertrain Site in Ypsilanti, MichiganPDF
81 FR 71633 - Metaldehyde; Pesticide TolerancesPDF
81 FR 71723 - Pesticide Product Registration; Receipt of Applications for New UsesPDF
81 FR 71689 - Notice of Solicitation of Applications for the Rural Energy for America Program for Federal Fiscal Year 2017PDF
81 FR 71661 - National Emission Standards for Hazardous Air Pollutant Emissions: Petroleum Refinery SectorPDF
81 FR 71722 - Receipt of Information Under the Toxic Substances Control ActPDF
81 FR 71721 - Combined Notice of FilingsPDF
81 FR 71722 - Combined Notice of FilingsPDF
81 FR 71715 - Combined Notice of Filings #1PDF
81 FR 71719 - Terra-Gen Mojave Windfarms, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request For Blanket Section 204 AuthorizationPDF
81 FR 71714 - DifWind Farms LTD VI; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 71722 - Portal Ridge Solar C, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 71721 - Portal Ridge Solar B, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
81 FR 71717 - Illinois Power Generating Company; Notice of Institution of Section 206 Proceeding and Refund Effective DatePDF
81 FR 71719 - Combined Notice of Filings #1PDF
81 FR 71716 - Combined Notice of Filings #1PDF
81 FR 71668 - Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various CommoditiesPDF
81 FR 71735 - Proposed Revised Vaccine Information Materials for MMR (Measles, Mumps, and Rubella and MMRV (Measles, Mumps, Rubella, and Varicella) VaccinesPDF
81 FR 71605 - Order Establishing De Minimis Threshold Phase-In Termination DatePDF
81 FR 71712 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Federal Perkins Loan Program Regulations and General Provisions RegulationsPDF
81 FR 71653 - Rule Recognizing Privileged Communications Between Clients and Patent Practitioners at the Patent Trial and Appeal BoardPDF
81 FR 71641 - Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Ocean Perch in the Central Regulatory Area of the Gulf of AlaskaPDF
81 FR 71641 - Fisheries of the Northeastern United States; Northeast Skate Complex; Adjustment to the Skate Bait Inseason Possession LimitPDF
81 FR 71642 - Fisheries of the Exclusive Economic Zone Off Alaska; Sablefish in the Central Regulatory Area of the Gulf of AlaskaPDF
81 FR 71710 - Magnuson-Stevens Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing PermitsPDF
81 FR 71714 - Application To Export Electric Energy; Tenaska Power Services Co.PDF
81 FR 71713 - Agency Information Collection ExtensionPDF
81 FR 71770 - Advisory Committee On Reactor Safeguards (ACRS) Meeting of the ACRS Subcommittee On Economic Simplified Boiling Water Reactors (ESBWR); Notice of MeetingPDF
81 FR 71767 - Bulk Manufacturer of Controlled Substances Application: Johnson Matthey Inc.PDF
81 FR 71696 - Dairyland Power Cooperative: Notice of Intent To Prepare an Environmental Impact Statement and Hold Public Scoping MeetingsPDF
81 FR 71766 - Importer of Controlled Substances Application: Anderson Brecon, Inc.PDF
81 FR 71730 - Notice to All Interested Parties of the Termination of the Receivership of 10372-Mountain Heritage Bank Clayton, GeorgiaPDF
81 FR 71730 - Proposed Agency Information Collection Activities; Comment RequestPDF
81 FR 71760 - Notice of Inventory Completion: U.S. Department of the Interior, Bureau of Land Management, Nevada State Office, Reno, NVPDF
81 FR 71763 - Notice of Intent To Repatriate Cultural Items: Stearns History Museum, Saint Cloud, MNPDF
81 FR 71766 - Importer of Controlled Substances Application: Johnson Matthey Inc.PDF
81 FR 71697 - Discontinuance of Information Collection 0694-0009: Triangular Transactions “Stamp” Covered by a U.S. Import CertificatePDF
81 FR 71769 - LaCrosseSolutions, LLC; La Crosse Boiling Water Reactor Partial Site ReleasePDF
81 FR 71733 - Submission for OMB Review; Debarment and Suspension and Other Responsibility MattersPDF
81 FR 71789 - Reports, Forms, and Record Keeping Requirements; Agency Information Collection Activity Under OMB ReviewPDF
81 FR 71788 - Transfer of Federally Assisted FacilityPDF
81 FR 71736 - Proposed Information Collection Activity; Comment RequestPDF
81 FR 71748 - Navigation Safety Advisory CouncilPDF
81 FR 71784 - Buy America Nationwide Waiver Notification for Commercially Available Off-the-Shelf (COTS) Products With Steel or Iron Components and for Steel Tie Wire Permanently Incorporated in Precast Concrete ProductsPDF
81 FR 71759 - Notice of Public Meeting: Resource Advisory Council (RAC) to the Boise District, Bureau of Land Management, U.S. Department of the InteriorPDF
81 FR 71759 - Filing of Plats of Survey: Oregon/WashingtonPDF
81 FR 71768 - Membership of the National Endowment for the Arts Senior Executive Service Performance Review BoardPDF
81 FR 71758 - Information Collection Request Sent to the Office of Management and Budget (OMB) for Approval; Revealing Opportunities for Local-Level Stakeholder Engagement and Social Science Inquiry in Landscape Conservation DesignPDF
81 FR 71749 - Agency Information Collection Activities: Registration for Classification as a Refugee, Form I-590; Revision of a Currently Approved CollectionPDF
81 FR 71647 - Internet Communication Disclaimers; Reopening of Comment Period and Notice of HearingPDF
81 FR 71749 - Agency Information Collection Activities: Application for Employment Authorization for Abused Nonimmigrant Spouse, Form I-765V; New CollectionPDF
81 FR 71713 - Environmental Management Site-Specific Advisory Board, PortsmouthPDF
81 FR 71746 - Performance Review Board MembersPDF
81 FR 71792 - Request for Citizens Coinage Advisory Committee Membership Applications; CorrectionPDF
81 FR 71784 - Petition for Exemption; Summary of Petition Received; Air Tractor Inc.PDF
81 FR 71764 - Certain Integrated Circuits With Voltage Regulators and Products Containing Same; Institution of InvestigationPDF
81 FR 71765 - Certain Hospital Beds, and Components Thereof; Commission's Determination Not To Review an Initial Determination Terminating the Investigation Based on Settlement; Termination of the InvestigationPDF
81 FR 71737 - Mallinckrodt Pharmaceuticals; Proposal To Withdraw Approval of an Abbreviated New Drug Application for Extended-Release Methylphenidate Tablets; Opportunity for a HearingPDF
81 FR 71741 - Kremers Urban Pharmaceuticals Inc.; Proposal To Withdraw Approval of an Abbreviated New Drug Application for Extended-Release Methylphenidate Tablets; Opportunity for a HearingPDF
81 FR 71783 - North Carolina Disaster #NC-00081PDF
81 FR 71710 - Mid-Atlantic Fishery Management Council (MAFMC); MeetingPDF
81 FR 71778 - Proposed Collection; Comment RequestPDF
81 FR 71777 - Submission for OMB Review; Comment RequestPDF
81 FR 71774 - Self-Regulatory Organizations; The Depository Trust Company; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Clarify Certain Rules Provisions Relating to PledgesPDF
81 FR 71776 - Self-Regulatory Organizations; NASDAQ PHLX LLC; Notice of Designation of a Longer Period for Commission Action on Proposed Rule Change To Delete or Amend Rule Language Relating to Specialists and Registered Options TradersPDF
81 FR 71772 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Fees SchedulePDF
81 FR 71791 - Senior Executive Service; Combined Performance Review Board (PRB)PDF
81 FR 71771 - Self-Regulatory Organizations; New York Stock Exchange LLC; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change, as Modified by Amendments No. 1 and 2, Allowing the Exchange To Trade Pursuant to Unlisted Trading Privileges Any NMS Stock Listed on Another National Securities Exchange; Establishing Listing and Trading Requirements for Exchange Traded Products; and Adopting New Equity Trading Rules Relating to Trading Halts of Securities Traded Pursuant to UTP on the Pillar PlatformPDF
81 FR 71778 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change to BZX Rule 14.11(e)(4), Commodity-Based Trust Shares, To List and Trade Winklevoss Bitcoin Shares Issued by the Winklevoss Bitcoin TrustPDF
81 FR 71782 - IOWA Disaster #IA-00067PDF
81 FR 71767 - Agency Information Collection Activities; Comment Request; Information Collections: Report of Construction Contractor's Wage RatesPDF
81 FR 71782 - Northcreek Mezzanine Fund II, L.P.; Notice Seeking Exemption Under Section 312 of the Small Business Investment Act, Conflicts of InterestPDF
81 FR 71783 - HAWAII Disaster #HI-00040PDF
81 FR 71657 - Determination of Rates and Terms for Making and Distributing Phonorecords (Phonorecords III); Comment Period ExtensionPDF
81 FR 71745 - Agency Information Collection Activities: Submission to OMB for Review and Approval; Public Comment Request; National Practitioner Data Bank Attestation of Reports by Hospitals, Medical Malpractice Payers, Health Plans, and Certain Other Health Care EntitiesPDF
81 FR 71790 - Mutual Savings Association Advisory CommitteePDF
81 FR 71747 - Office of The Director, Office of Science Policy, Office of Biotechnology Activities; Amended Notice of MeetingPDF
81 FR 71747 - National Institute of General Medical Sciences; Notice of Closed MeetingPDF
81 FR 71747 - National Institute on Drug Abuse; Notice of Closed MeetingsPDF
81 FR 71726 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
81 FR 71729 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
81 FR 71728 - Information Collection Being Submitted for Review and Approval to the Office of Management and BudgetPDF
81 FR 71644 - Post-Employment Conflict of Interest Restrictions; Revision of Departmental Component DesignationsPDF
81 FR 71672 - Atlantic Highly Migratory Species; Atlantic Shark Management Measures; Proposed Amendment 5bPDF
81 FR 71689 - Notice of Proposed Changes to Section I of the Wisconsin Field Office Technical GuidePDF
81 FR 71658 - Veterans' Mortgage Life Insurance-Coverage AmendmentPDF
81 FR 71638 - NASA Federal Acquisition Regulation SupplementPDF
81 FR 71648 - Amendments to the Regulation Regarding the List of Drug Products That Have Been Withdrawn or Removed From the Market for Reasons of Safety or EffectivenessPDF
81 FR 71610 - Medical Devices; Physical Medicine Devices; Classification of the Upper Extremity Prosthesis Including a Simultaneously Powered Elbow and/or Shoulder With Greater Than Two Simultaneous Powered Degrees of Freedom and Controlled by Non-Implanted Electrical ComponentsPDF
81 FR 71768 - Membership of the National Science Board's Senior Executive Service Performance Review BoardPDF
81 FR 71579 - New Equipment Contract, RUS Contract Form 395 for Telecommunications and Broadband BorrowersPDF
81 FR 71670 - Endangered and Threatened Wildlife and Plants; Proposed Rule for the North American WolverinePDF
81 FR 71631 - Air Plan Approval; Ohio; Removal of Gasoline Vapor Recovery RequirementsPDF
81 FR 71613 - Revisions to Public Notice Provisions in Clean Air Act Permitting ProgramsPDF
81 FR 71946 - Cross-Border Application of the Registration Thresholds and External Business Conduct Standards Applicable to Swap Dealers and Major Swap ParticipantsPDF
81 FR 71794 - Energy Conservation Program: Energy Conservation Standards for General Service LampsPDF
81 FR 71591 - Airworthiness Directives; Sikorsky Aircraft Corporation HelicoptersPDF
81 FR 71818 - Agricultural Conservation Easement ProgramPDF
81 FR 71858 - Magnuson-Stevens Act Provisions; National Standard GuidelinesPDF
81 FR 71593 - Airworthiness Directives; Airbus AirplanesPDF
81 FR 71596 - Airworthiness Directives; Airbus AirplanesPDF
81 FR 71906 - Review of the National Ambient Air Quality Standards for LeadPDF
81 FR 71589 - Airworthiness Directives; The Boeing Company AirplanesPDF
81 FR 71602 - Airworthiness Directives; Airbus AirplanesPDF
81 FR 71586 - Airworthiness Directives; Dassault Aviation AirplanesPDF

Issue

81 201 Tuesday, October 18, 2016 Contents Agriculture Agriculture Department See

Commodity Credit Corporation

See

Natural Resources Conservation Service

See

Rural Business-Cooperative Service

See

Rural Utilities Service

Centers Disease Centers for Disease Control and Prevention NOTICES Vaccine Information Materials: Measles, Mumps, and Rubella; Measles, Mumps, Rubella, and Varicella; Revisions, 71735-71736 2016-25144 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Renewal of Office of Community Services Community Economic Development Standard Reporting Format, 71736-71737 2016-25120 Coast Guard Coast Guard RULES Drawbridge Operations: Atlantic Intracoastal Waterway, Wrightsville Beach, NC and Northeast Cape Fear River, Wilmington, NC, 71612-71613 2016-25183 NOTICES Meetings: Navigation Safety Advisory Council, 71748-71749 2016-25119 Commerce Commerce Department See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

See

Patent and Trademark Office

Commodity Credit Commodity Credit Corporation RULES Agricultural Conservation Easement Program, 71818-71855 2016-24504 Commodity Futures Commodity Futures Trading Commission RULES Order Establishing De Minimis Threshold Phase-In Termination Date, 71605-71610 2016-25143 PROPOSED RULES Cross-Border Applications: Registration Thresholds and External Business Conduct Standards Applicable to Swap Dealers and Major Swap Participants, 71946-71975 2016-24905 Comptroller Comptroller of the Currency NOTICES Charter Renewals: Mutual Savings Association Advisory Committee, 71790-71791 2016-25073 Copyright Royalty Board Copyright Royalty Board PROPOSED RULES Determination of Rates and Terms for Making and Distributing Phonorecords (Phonorecords III); Comment Period Extension, 71657-71658 2016-25075 Defense Acquisition Defense Acquisition Regulations System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Defense Federal Acquisition Regulation Supplement, 71711-71712 2016-25182 Defense Department Defense Department See

Defense Acquisition Regulations System

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Debarment and Suspension and Other Responsibility Matters, 71733-71735 2016-25123 Fiscal Year 2015 Inventory of Contracted Services, 71712 2016-25185
Drug Drug Enforcement Administration NOTICES Importers of Controlled Substances; Applications: Anderson Brecon, Inc., 71766 2016-25131 Johnson Matthey Inc., 71766-71767 2016-25126 Manufacturers of Controlled Substances; Applications: Johnson Matthey Inc., 71767 2016-25133 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Perkins Loan Program Regulations and General Provisions Regulations, 71712-71713 2016-25142 Energy Department Energy Department See

Federal Energy Regulatory Commission

PROPOSED RULES Energy Conservation Programs: Standards for General Service Lamps, 71794-71816 2016-24865 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 71713-71714 2016-25135 Applications to Export Electric Energy: Tenaska Power Services Co., 71714 2016-25136 Meetings: Environmental Management Site-Specific Advisory Board, Portsmouth, 71713 2016-25100
Engraving Engraving and Printing Bureau NOTICES Senior Executive Service; Combined Performance Review Board, 71791 2016-25084 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Ohio; Removal of Gasoline Vapor Recovery Requirements, 71631-71633 2016-24912 National Ambient Air Quality Standards for Lead; Review, 71906-71943 2016-23153 Participation by Disadvantaged Business Enterprises in Procurements under EPA Financial Assistance Agreements, 71613 2016-25169 Pesticide Tolerances: Metaldehyde, 71633-71638 2016-25166 Revisions to Public Notice Provisions in Clean Air Act Permitting Programs, 71613-71631 2016-24911 PROPOSED RULES National Emission Standards: Hazardous Air Pollutant Emissions: Petroleum Refinery Sector, 71661-71667 2016-25162 Pesticide Petitions: Residues of Pesticide Chemicals in or on Various Commodities, 71668-71669 2016-25146 NOTICES Access to Confidential Business Information: Abt Associates, Inc. and Versar, Inc., 71724-71725 2016-25174 Pesticide Product Registrations: Applications for New Uses, 71723-71724 2016-25165 Prospective Purchaser Agreement: Willow Run Powertrain Site in Ypsilanti, MI, 71725 2016-25168 Receipt of Information under the Toxic Substances Control Act, 71722-71723 2016-25160 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus Airplanes, 71593-71605 2016-22837 2016-23261 2016-23647 Dassault Aviation Airplanes, 71586-71589 2016-22832 Sikorsky Aircraft Corporation Helicopters, 71591-71593 2016-24738 The Boeing Company Airplanes, 71589-71591 2016-23076 NOTICES Petitions for Exemption; Summaries: Air Tractor Inc., 71784 2016-25096 Federal Communications Federal Communications Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 71726-71730 2016-25064 2016-25065 2016-25066 2016-25067 Federal Deposit Federal Deposit Insurance Corporation NOTICES Terminations of Receivership: Mountain Heritage Bank, Clayton, GA, 71730 2016-25130 Federal Election Federal Election Commission PROPOSED RULES Internet Communication Disclaimers; Reopening of Comment Period and Notice of Hearing, 71647-71648 2016-25103 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 71715-71717, 71719-71722 2016-25150 2016-25151 2016-25157 2016-25158 2016-25159 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: DifWind Farms, LTD VI, 71714-71715 2016-25155 Portal Ridge Solar B, LLC, 71721 2016-25153 Portal Ridge Solar C, LLC, 71722 2016-25154 Terra-Gen Mojave Windfarms, LLC, 71719 2016-25156 Meetings; Sunshine Act, 71717-71719 2016-25245 Refund Effective Dates: Illinois Power Generating Co., 71717 2016-25152 Federal Highway Federal Highway Administration NOTICES Buy America Waivers, 71784-71788 2016-25116 Federal Reserve Federal Reserve System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 71730-71733 2016-25129 Federal Transit Federal Transit Administration NOTICES Transfers of Federally Assisted Lands or Facilities, 71788-71789 2016-25121 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Wildlife and Plants: North American Wolverine, 71670-71671 2016-24929 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Revealing Opportunities for Local-Level Stakeholder Engagement and Social Science Inquiry in Landscape Conservation Design, 71758-71759 2016-25108 Food and Drug Food and Drug Administration RULES Medical Devices: Physical Medicine Devices; Classification of the Upper Extremity Prosthesis Including a Simultaneously Powered Elbow and/or Shoulder With Greater Than Two Simultaneous Powered Degrees of Freedom and Controlled by Non-Implanted Electrical Components, 71610-71612 2016-25001 PROPOSED RULES Drug Products Withdrawn or Removed from the Market for Reasons of Safety or Effectiveness, 71648-71653 2016-25005 NOTICES Abbreviated New Drug Applications: Kremers Urban Pharmaceuticals Inc.; Extended-Release Methylphenidate Tablets; Withdrawal, 71741-71745 2016-25092 New Drug Applications: Mallinckrodt Pharmaceuticals; Extended-Release Methylphenidate Tablets;Withdrawal, 71737-71741 2016-25093 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Debarment and Suspension and Other Responsibility Matters, 71733-71735 2016-25123 Government Ethics Government Ethics Office PROPOSED RULES Post-Employment Conflict of Interest Restrictions: Revision of Departmental Component Designations, 71644-71646 2016-25054 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Children and Families Administration

See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

NOTICES Performance Review Board Members, 71746-71747 2016-25099
Health Resources Health Resources and Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Practitioner Data Bank Attestation of Reports by Hospitals, Medical Malpractice Payers, Health Plans, and Certain Other Health Care Entities, 71745-71746 2016-25074 Homeland Homeland Security Department See

Coast Guard

See

U.S. Citizenship and Immigration Services

Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: HOME Investment Partnership Program, 71755-71758 2016-25175 Privacy Act; Systems of Records, 71750-71755 2016-25177 Industry Industry and Security Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Triangular Transactions Stamp Covered by a U.S. Import Certificate; Discontinuance, 71697 2016-25125 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

See

National Park Service

International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Steel Concrete Reinforcing Bar from the Republic of Turkey, 71705-71709 2016-25178 Uncoated Paper from Portugal, 71703-71705 2016-25172 Applications: Duty-Free Entry of Scientific Instruments, 71702-71703 2016-25173 Determinations of Sales at Less than Fair Value: Steel Concrete Reinforcing Bar from Japan, Taiwan and the Republic of Turkey, 71697-71702 2016-25171 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain Computer Cables, Chargers, Adapters, Peripheral Devices and Packaging Containing the Same, 71765 2016-25196 Certain Hospital Beds and Components Thereof, 71765-71766 2016-25094 Certain Integrated Circuits with Voltage Regulators and Products Containing Same, 71764 2016-25095 Meetings; Sunshine Act, 71763-71764 2016-25261 Justice Department Justice Department See

Drug Enforcement Administration

Labor Department Labor Department See

Wage and Hour Division

Land Land Management Bureau NOTICES Meetings: Resource Advisory Council to the Boise District, 71759-71760 2016-25114 Plats of Surveys: Oregon/Washington, 71759 2016-25113 Library Library of Congress See

Copyright Royalty Board

NASA National Aeronautics and Space Administration RULES NASA Federal Acquisition Regulation Supplement, 71638 2016-25014 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Debarment and Suspension and Other Responsibility Matters, 71733-71735 2016-25123 National Endowment for the Arts National Endowment for the Arts NOTICES Senior Executive Service Performance Review Board Membership, 71768 2016-25111 National Foundation National Foundation on the Arts and the Humanities See

National Endowment for the Arts

National Highway National Highway Traffic Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Reports, Forms, and Record Keeping Requirements, 71789-71790 2016-25122 National Institute National Institutes of Health NOTICES Meetings: National Institute of General Medical Sciences, 71747 2016-25071 National Institute on Drug Abuse, 71747-71748 2016-25070 Office of The Director, Office of Science Policy, Office of Biotechnology Activities, 71747 2016-25072 National Oceanic National Oceanic and Atmospheric Administration RULES Atlantic Highly Migratory Species: Atlantic Bluefin Tuna Fisheries, 71639-71641 2016-25309 Fisheries of the Exclusive Economic Zone off Alaska: Pacific Ocean Perch in the Central Regulatory Area of the Gulf of Alaska, 71641-71642 2016-25140 Sablefish in the Central Regulatory Area of the Gulf of Alaska, 71642-71643 2016-25138 Fisheries of the Northeastern United States; Northeast Skate Complex: Adjustment to the Skate Bait Inseason Possession Limit, 71641 2016-25139 Magnuson-Stevens Act Provisions; National Standard Guidelines, 71858-71904 2016-24500 PROPOSED RULES Atlantic Highly Migratory Species: Atlantic Shark Management Measures; Proposed Amendment 5b, 71672-71688 2016-25051 NOTICES Exempted Fishing Permit; Applications, 71710-71711 2016-25137 Meetings: Mid-Atlantic Fishery Management Council, 71710 2016-25090 Taking and Importing Marine Mammals: Fisheries Research, 71709-71710 2016-25191 National Park National Park Service NOTICES Boundary Revisions: Big Thicket National Preserve, 71760 2016-25179 Environmental Impact Statements; Availability, etc.: Fire Island National Seashore General Management Plan, 71762-71763 2016-25176 Inventory Completions: Department of the Interior, Bureau of Land Management, Nevada State Office, Reno, NV, 71760-71762 2016-25128 Repatriation of Cultural Items: Stearns History Museum, Saint Cloud, MN, 71763 2016-25127 National Science National Science Foundation NOTICES Senior Executive Service Performance Review Board Membership; National Science Board, 71768-71769 2016-24961 National Resources Natural Resources Conservation Service NOTICES Proposed Changes to Section I of the Wisconsin Field Office Technical Guide, 71689 2016-25047 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Meetings: Advisory Committee on Reactor Safeguards Subcommittee on Economic Simplified Boiling Water Reactors, 71770 2016-25134 Partial Site Releases: LaCrosseSolutions, LLC; La Crosse Boiling Water Reactor, 71769-71770 2016-25124 Patent Patent and Trademark Office PROPOSED RULES Recognizing Privileged Communications between Clients and Patent Practitioners at the Patent Trial and Appeal Board, 71653-71657 2016-25141 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Meetings: International Standards on the Transport of Dangerous Goods, 71790 2016-25181 Presidential Documents Presidential Documents EXECUTIVE ORDERS Charitable Fundraising; Amendments to Executive Order 12353 (EO 13743), 71571-71572 2016-25288 Space Weather Events; Coordinating Efforts To Prepare the Nation (EO 13744), 71573-71577 2016-25290 Rural Business Rural Business-Cooperative Service NOTICES Funding Availabilities: Rural Energy for America Program for Federal Fiscal Year 2017, 71689-71696 2016-25163 Rural Utilities Rural Utilities Service RULES New Equipment Contract for Telecommunications and Broadband Borrowers, 71579-71585 2016-24945 NOTICES Environmental Impact Statements; Availability, etc.: Dairyland Power Cooperative, 71696-71697 2016-25132 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 71777-71778 2016-25088 2016-25089 Self-Regulatory Organizations; Proposed Rule Changes: Bats BZX Exchange, Inc., 71778-71782 2016-25082 Chicago Board Options Exchange, Inc., 71772-71774 2016-25085 NASDAQ PHLX LLC, 71776-71777 2016-25086 New York Stock Exchange, LLC, 71771-71772 2016-25083 The Depository Trust Co., 71774-71776 2016-25087 Small Business Small Business Administration NOTICES Conflict of Interest Exemptions: Northcreek Mezzanine Fund II, LP, 71782 2016-25078 Disaster Declarations: Iowa, 71782-71783 2016-25081 North Carolina, 71783 2016-25091 Major Disaster Declarations: Hawaii, 71783 2016-25077 State Department State Department NOTICES Meetings: Binational Bridges and Border Crossings Group, San Diego, CA, 71784 2016-25170 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

Federal Transit Administration

See

National Highway Traffic Safety Administration

See

Pipeline and Hazardous Materials Safety Administration

Treasury Treasury Department See

Comptroller of the Currency

See

Engraving and Printing Bureau

See

United States Mint

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 71791-71792 2016-25109 2016-25184
U.S. Citizenship U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Employment Authorization for Abused Nonimmigrant Spouse, 71749-71750 2016-25101 Registration for Classification as a Refugee, 71749 2016-25107 U.S. Mint United States Mint NOTICES Requests for Nominations: Citizens Coinage Advisory Committee; Correction, 71792 2016-25097 Veteran Affairs Veterans Affairs Department PROPOSED RULES Veterans Mortgage Life Insurance: Coverage Amendment, 71658-71661 2016-25025 Wage Wage and Hour Division NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Report of Construction Contractor's Wage Rates, 71767-71768 2016-25079 Separate Parts In This Issue Part II Energy Department, 71794-71816 2016-24865 Part III Agriculture Department, Commodity Credit Corporation, 71818-71855 2016-24504 Part IV Commerce Department, National Oceanic and Atmospheric Administration, 71858-71904 2016-24500 Part V Environmental Protection Agency, 71906-71943 2016-23153 Part VI Commodity Futures Trading Commission, 71946-71975 2016-24905 Reader Aids

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81 201 Tuesday, October 18, 2016 Rules and Regulations DEPARTMENT OF AGRICULTURE Rural Utilities Service 7 CFR Parts 1753 and 1755 RIN 0572-AC29 New Equipment Contract, RUS Contract Form 395 for Telecommunications and Broadband Borrowers AGENCY:

Rural Utilities Service, USDA.

ACTION:

Final rule.

SUMMARY:

The Rural Utilities Service (RUS), an agency of the United States Department of Agriculture (USDA), hereinafter referred to as RUS or the Agency, is issuing a final rule to streamline the contractual process for equipment procurement by replacing type-specific equipment contracts, RUS Forms 397, 398, 525, 545, and associated documents (Forms 231, 396, 396a, 517, 525a, 744, 752a, 754, and addenda) with a new, unified Equipment Contract, RUS Contract Form 395 and associated close-out documents (Forms 395a, 395b, 395c and 395d) and by removing construction standards RUS Forms 397b, 397c, 397d, 397f, 397g, 397h. On October 1, 2015, RUS published a Request for Comments in the Federal Register, to establish a new equipment contract and associated policies for Telecommunications and Broadband Borrowers, Equipment Contract, RUS Contract Form 395 (RUS Contract Form 395).

DATES:

This final rule is effective October 18, 2016.

FOR FURTHER INFORMATION CONTACT:

Aylene Mafnas, Chief, Engineering Branch, Policy and Outreach Division, Rural Utilities Service, Telecommunications Program, U.S. Department of Agriculture, STOP 1599, 1400 Independence Ave. SW., Washington, DC 20250-1550, Telephone number: (202) 690-4673.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This final rule has been determined to be not significant for the purposes of Executive Order 12866, Regulatory Planning and Review, and therefore has not been reviewed by the Office of Management and Budget (OMB).

Executive Order 12988

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. The Agency has determined that this rule meets the applicable standards provided in section 3 of the Executive Order. In addition, all state and local laws and regulations that are in conflict with this rule will be preempted. No retroactive effect will be given to this rule and, in accordance with section 212(e) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. 6912(e)), administrative appeal procedures must be exhausted before an action against the Department or its agencies may be initiated.

Executive Order 12372

This final rule is not subject to the requirements of Executive Order 12372, “Intergovernmental Review”, as implemented under USDA's regulations at 7 CFR part 3015.

Regulatory Flexibility Act Certification

RUS has determined that this final rule will not have a significant economic impact on a substantial number of small entities, as defined in the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). RUS provides loans to borrowers at interest rates and on terms that are more favorable than those generally available from the private sector. RUS borrowers, as a result of obtaining federal financing, receive economic benefits that exceed any direct economic costs associated with complying with RUS regulations and requirements.

Environmental Impact Statement

This final rule has been examined under Agency environmental regulations at 7 CFR part 1794. The Administrator has determined that this is not a major Federal action significantly affecting the environment. Therefore, in accordance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), an Environmental Impact Statement or Assessment is not required.

Catalog of Federal Domestic Assistance

The Catalog of Federal Domestic Assistance (CFDA) number assigned to this program is 10.851. The Catalog is available on the Internet at http://www.cfda.gov.

Unfunded Mandates

This final rule contains no Federal mandates (under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995) for State, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of sections 202 and 205 of the Unfunded Mandates Reform Act of 1995.

E-Government Act Compliance

RUS is committed to the E-Government Act, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.

Executive Order 13132, Federalism

The policies contained in this final rule do not have any substantial direct effect on 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. Nor does this final rule impose substantial direct compliance costs on state and local governments. Therefore, consultation with the states is not required.

Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

Executive Order 13175 imposes requirements on RUS in the development of regulatory policies that have tribal implications or preempt tribal laws. RUS has determined that this rule does not have a substantial direct effect on one or more Indian tribes(s) or on either the relationship or the distribution of powers and responsibilities between the Federal Government and Indian tribes. Thus, this final rule is not subject to the requirements of Executive Order 13175. If a tribe determines that this final rule has implications of which RUS is not aware and would like to engage in consultation with RUS on this rule, please contact the Rural Development Native American Coordinator at (720) 544-2911 or [email protected].

USDA Non-Discrimination Policy

In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Persons with disabilities who require alternative means of communication for program information (e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the responsible Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English.

To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at http://www.ascr.usda.gov/complaint_filing_cust.html and at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by: (1) Mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW., Washington, DC 20250-9410; (2) fax: (202) 690-7442; or (3) email: [email protected]

USDA is an equal opportunity provider, employer, and lender.

Information Collection and Recordkeeping Requirements

The information collection and recordkeeping requirements contained in this final rule are pending approval by OMB pursuant to the Paperwork Reduction Act 1995 (44 U.S.C. Chapter 35) under control number 0572-NEW. The paperwork contained in this rule will not be effective until approved by OMB.

Background

Rural Development is a mission area within the U.S. Department of Agriculture comprising the Rural Utilities Service, Rural Housing Service and Rural Business/Cooperative Service. Rural Development's mission is to increase economic opportunity and improve the quality of life for all rural Americans. Rural Development meets its mission by providing loans, loan guarantees, grants and technical assistance through more than 40 programs aimed at creating and improving housing, businesses and infrastructure throughout rural America.

The Rural Utilities Service (RUS) loan, loan guarantee and grant programs act as a catalyst for economic and community development. By financing improvements to rural electric, water and waste, and telecom and broadband infrastructure, RUS also plays a significant role in improving other measures of quality of life in rural America, including public health and safety, environmental protection, conservation and cultural and historic preservation.

In order to continue to facilitate the programmatic interest of the Rural Electrification Act of 1936 (the “RE Act”), as amended (7 U.S.C. 901 et seq.), that loans and loans guaranteed by RUS are adequately secured, RUS has established the use of certain standardized forms for materials, equipment, and construction of electric and telecommunications systems. The use of standard forms, construction contracts, and procurement procedures help to assure that appropriate standards and specifications are maintained by the borrower in order to not adversely affect RUS's loan security, and ensure that loan and loan guarantee funds are effectively used for the intended purpose(s).

RUS may, from time to time, promulgate new contract forms or revise or eliminate existing contract forms. In so doing, RUS is required by 7 CFR 1755.29, to publish a notice of rulemaking in the Federal Register announcing, as appropriate, a revision in, or a proposal to amend § 1755.30(c), List of telecommunications standard contract forms. On February 12, 2014, RUS published a proposed rule in the Federal Register (79 FR 8327) to establish a new equipment contract and associated policies for Telecommunications and Broadband Borrowers, Equipment Contract, RUS Contract Form 395 (RUS Contract Form 395) under 7 CFR parts 1753 and 1755. RUS Contract Form 395 reflects present business and RUS practices, as well as changes in technology, services and equipment. The Agency also issued a Request for Comments notice which published in the Federal Register on Thursday, October 1, 2015 at 80 FR 59080, providing the public with an additional opportunity for public comment. Comments were received by the Agency which are summarized and addressed in the Comments Section of this final rule.

In response to changes in competition, legislation, technologies, and regulation which have resulted in changes to business practices in the communications industry, RUS has undertaken a comprehensive review of its Telecommunications and Broadband Programs' contracts and contracting procedures. The purpose of this undertaking is to streamline the contractual process for equipment procurement and improve the customer service provided to the RUS rural telecommunications and broadband borrowers.

Under this rulemaking, the new equipment contract RUS Contract Form 395 and the associated close-out documents (Forms 395a, 395b, 395c and 395d) replace the current equipment specific contracts, RUS Forms 397, 398, 525, 545, and the associated close-out documents (Forms 231, 396, 396a, 517, 744, 752, 752a, and 754). Furthermore, along with the elimination of the RUS Form 397, the associated construction standards RUS Forms 397b, 397c, 397d, 397f, 397g, 397h have also been eliminated. The contract terms and obligations included in the new RUS Contract Form 395 reflect current RUS and private sector industry practices, as well as changes in technology, services and equipment. This final rule also removes references to Informational Publication (I.P.) 344-2, “List of Material Acceptable for Use on Telecommunications Systems of RUS Borrowers” (List of Materials) from the Telecommunications Program regulations. The maintenance and use of this list was discontinued by memorandum from the Agency Administrator dated May 23, 2011. Instead, in order to protect RUS's loan security and compliance with continuing Buy America statutory mandates, the Agency has incorporated an approach into the review of individual projects and the approval of loan advances for this purpose. Traditional telecommunications borrowers and broadband borrowers will both benefit from use of the new RUS Contract Form 395 contract as it reflects many of the changes the telecommunications industry has experienced as it has technologically transitioned from narrowband to broadband. The new RUS Contract Form 395 can assist RUS borrowers with the purchase of equipment specifically designed to meet or exceed the requirements of either narrowband or broadband systems.

Comments

On February 12, 2014, RUS published a proposed rule in the Federal Register (79 FR 8327) to establish a new equipment contract and associated policies for Telecommunications and Broadband Borrowers, Equipment Contract, RUS Contract Form 395 (RUS Contract Form 395) under 7 CFR parts 1753 and 1755. The Agency also issued a Request for Comments notice in the Federal Register on Thursday, October 1, 2015 at 80 FR 59080, providing the public with an additional opportunity for public comment. Comments were received by the Agency which are summarized and addressed in this section of the final rule.

Comments specifically concerning the new contract were submitted by Osmose Communications Services, LLC and by ACE, The Association of Communications Engineers. Two (2) comments were submitted on behalf of Osmose Communications Services, LLC and twenty-four (24) comments on behalf of ACE. Additionally, the Bloom Corporation submitted general comments non-related to the RUS Contract Form 395.

Osmose Communications Services, LLC

Issue 1: The two (2) comments submitted on behalf of Osmose Communications Services, LLC concerned the provisions of the contract form to accommodate a buyer's request for partial or staged delivery of equipment covered under the contract.

RUS Response: As written, the RUS Contract Form 395 already supports agreements for staged delivery by appropriately filling in the agreed to information in the table that comprises Schedule 1. Due to the fact that Schedule 1 is part of the contract, the delivery schedule is acknowledged by both parties of the contract by the signatures of offer and acceptance.

Association of Communications Engineers (ACE)

Issue 1: Twenty-two (22) comments submitted on behalf of ACE were editorial in nature, providing typographical correction, consistency with other RUS contracts, and/or section clarity.

RUS Response: RUS accepts these suggestions and has incorporated those suggestions into the document.

Issue 2: ACE referenced the notice published in the Federal Register on October 1, 2015, that RUS technical specifications 397b, 397c, 397d, 397g, and 397h are not being replaced as stated in the notice.

RUS Response: RUS agrees. The Final Rule will state that these documents are being eliminated rather than replaced.

Issue 3: ACE commented that they support RUS' inclusion of sales and use tax in Schedule 2 of RUS Contract Form 395.

RUS Response: RUS acknowledges the comment.

Bloom Corporation

Comments not specifically related to the new Equipment Contract, Form 395 were submitted on behalf of the Bloom Corporation, Bellevue, WA. In summary, the comment stated that as presently written, the revised regulations do not adequately ensure equipment purchased using program funds are in compliance with the “Buy American” Requirement of the Rural Electrification Act of 1936, as amended. The comments are summarized below with the Agency's responses as follows:

Issue 1: Commenter states that only a manufacturer can certify Buy American compliance. Proposed regulations allow RUS Form No. 213 (Buy American) to be signed by a “Contractor”, “Subcontractor”, “Seller” or “Material Supplier”.

RUS Response: The RUS Contract Form 395 does not include changes to Form 213 or its associated policy. The purpose of this rulemaking is to streamline the contractual process for the RUS Borrower and expedite the approval process of equipment during the duration of the project. Addressing changes to Buy American regulations or the procedure for certification is not within the scope of this rulemaking.

Issue 2: Commenter states that only RUS can confirm that a Buy American Certification is adequate and in line with statutory requirements. Proposed regulations abdicate this oversight function to a “Contractor”, “Subcontractor”, “Seller” or “Material Supplier”. RUS can rely on borrowers and their engineers to ascertain conformance with relevant standards but not the Buy American Act requirement.

RUS Response: The RUS Contract Form 395 does not include changes to Form 213 or its associated policy. The purpose of this rulemaking is to streamline the contractual process for the RUS Borrower and expedite the approval process of equipment during the duration of the project. Changes to Buy American regulations or the procedure for certification is not within the scope of this rulemaking.

Issue 3: Commenter states that if RUS never possesses the signed Buy American Certification, their role is not one of oversight, but is reduced to one of administration only. The proposed regulations do not require borrowers to submit the Buy American Certification paperwork they assembled to RUS. Without that paperwork, RUS is entrusting borrowers to enforce the statutory Buy American requirement in a way the Commenter believes they are not permitted.

RUS Response: The procedure specifies the requirement that the certification be maintained and presented to RUS if and when requested.

Issue 4: Commenter states that retiring the Information Publication (I.P.) 344-2, “List of Material acceptable for Use on Telecommunications Systems of RUS Borrowers” reference tool, while still requiring that equipment be in compliance with the Buy American Act, will create an exponential increase in work for borrowers and engineers as they are left to their own devices to determine Buy American compliance, a function the RUS List of Materials once performed. The proposed regulations intentionally or not will require every borrower, for every project, for every component to ascertain Buy American compliance by their own means. And in turn every manufacturer will have to address every inquiry, for every component, from every borrower on a case-by-case basis. The RUS List of Materials was created to avoid this exact scenario.

RUS Response: In an open letter from the Rural Utilities Service (RUS) Administrator on May 23, 2011, it was announced that RUS would no longer accept applications for equipment to be added to the List of Materials for Telecommunications and immediately ceased publication of the List of Materials for Telecommunications. To protect the Agency's loan security and compliance with continuing Buy America statutory mandates, RUS transitioned from a listing process to an approach which ensures that construction financed by RUS meets applicable industry standards. This approach has been incorporated into the Agency's review of individual projects and the approval of loan advances. The purpose of this rulemaking is to streamline the contractual process for the RUS Borrower and expedite the approval process of equipment during the duration of the project and not to reinstate the listing process.

Issue 5: Commenter states that RUS should create and maintain a Buy American Registry listing of all the equipment for which RUS themselves have collected documented proof are compliant with the Buy American Act. Such a list will resolve most if not all of the issues I raise.

RUS Response: The discontinuance of the RUS List of Material, under which the Buy American registry would be maintained, was announced by the RUS Administrator in an open letter on May 23, 2011. The purpose of this rulemaking is to streamline the contractual process for the RUS Borrower and expedite the approval process of equipment during the duration of the project and not to reinstate a listing process.

List of Subjects 7 CFR Part 1753

Communications equipment, Loan programs—Telecommunications, Reporting and recordkeeping requirements, Rural areas, and Telephone.

7 CFR Part 1755

Loan programs—Telecommunications; Reporting and recordkeeping requirements, Rural areas, and Telecommunications.

For the reasons set forth in the preamble, the Rural Utilities Service is amending Chapter XVII of Title 7 of the Code of Federal Regulations as follows:

PART 1753—TELECOMMUNICATIONS SYSTEM CONSTRUCTION POLICIES AND PROCEDURES 1. The authority citation for part 1753 continues to read as follows: Authority:

5 U.S.C. 501, 7 U.S.C. 901 et seq.

Subpart A—General 2. Amend § 1753.2: a. By removing the definition of “RTB”; b. By revising the definitions of “Contract” and “Project” to read as follows:
§ 1753.2 Definitions.

Contract—“Contract” means collectively the Seller's Proposal, Seller's Technical Proposal including any general or feature descriptions, equipment lists, Seller's responses to the Buyer's specifications and Performance Requirements, the Buyer's Acceptance, Articles I through X herein, the Performance Requirements, and the Contractor's Bond when required by the Buyer.

Project—“Project” means any equipment, including but not limited to switching, routing, access, video, and/or transport equipment, which will be used in the delivery of voice, video, or data services, which are listed under Column 2, “Equipment,” in Schedule 1 hereto. A Project will have a single delivery and completion schedule listed under Column 7 and Column 8. The Contract may consist of one or more Projects.

3. Amend § 1753.6 by revising paragraph (a) to read as follows:
§ 1753.6 Standards, specifications, and general requirements.

(a) Materials, equipment, and construction financed with loan funds must meet the standards and specifications established by RUS in 7 CFR 1755.97 which lists the RUS Bulletins containing the standards and specifications for telephone facilities.

4. Amend § 1753.7 by: a. Revising paragraph (c), b. Removing paragraph (f)(4).

The revision reads as follows:

§ 1753.7 Plans and specifications (P&S).

(c) The appropriate standards and specifications listed in 7 CFR part 1755 shall be included in the P&S. When RUS has not prepared standards and specifications, the borrower shall use all appropriate project specific engineering requirements and specifications prepared by the borrower's engineer. The specifications prepared by the borrower's engineer and based on appropriate project specific engineering requirements shall be subject to review and approval by RUS for all major construction, including major projects which would be exempted from RUS approval under paragraph (e) of this section.

5. Amend § 1753.9 by revising paragraphs (a) and (c) to read as follows:
§ 1753.9 Subcontracts.

(a) RUS construction contract Forms 257, 395, and 515, contain provisions for subcontracting. Reference should be made to the individual contracts for the amounts and conditions under which a contractor may subcontract work under the contract.

(c) As stated in contract Forms 257, 395, and 515, the contractor shall bear full responsibility for the acts and omissions of the subcontractor and is not relieved of any obligations to the borrower and to the Government under the contract.

Subpart B—Engineering Services 6. Amend § 1753.18 by revising paragraph (c) to read as follows:
§ 1753.18 Engineer and architect contract closeout certifications.

(c) A statement that construction used was in accordance with specifications published by RUS covering the construction which were in effect when the contract was executed, or in the absence of such specifications, that it meets other applicable specifications and standards and that it meets all applicable national and local code requirements as to strength and safety.

Subpart E—Purchase and Installation of Central Office Equipment 7. Amend § 1753.36 by revising paragraphs (b), (c), (e), and (g) to read as follows:
§ 1753.36 General.

(b) Terms used in this subpart are defined in § 1753.2 and Equipment Contract, RUS Contract Form 395 (RUS Contract Form 395).

(c) Borrowers shall use RUS Contract Form 395, and associated RUS Form 395a, Equipment Contract Certificate of Completion (Including Installation), when the firm supplying the equipment will install it and RUS Contract Form 395 and associated RUS Form 395b, Equipment Contract Certificate of Completion (Not Including Installation) when the supplier of the equipment will not be installing it. In either case the appropriate specifications shall be included in the contract.

(e) The borrower shall take sealed competitive bids for all central office equipment to be purchased under RUS Contract Form 395 using the procedure set forth in Sec. 1753.38(a), unless RUS approval to negotiate is obtained.

(g) Materials and equipment must meet the standards and general specifications approved by RUS.

8. Amend § 1753.37 by revising paragraphs (a) and (b) to read as follows:
§ 1753.37 Plans and specifications (P&S).

(a) General. (1) Prior to the preparation of P&S, the borrower shall review with the GFR the current and future requirements for central office equipment.

(2) The P&S shall specify the delivery and completion time required for each exchange.

(3) P&S for equipment to be provided under an Equipment Contract, RUS Contract Form 395 (RUS Contract Form 395) contract without installation shall require the supplier to provide specific installation information and a detailed bonding and grounding plan to be utilized by the engineer, borrower, and others responsible for the installation of the equipment.

(b) Preparation of P&S. The P&S shall include RUS Contract Form 395, Notice and Instructions to Bidders, specifications for the required equipment for each exchange, provision for spare parts, and all other pertinent data needed by the bidder to complete its proposal.

9. Amend § 1753.38 by: a. Revising paragraphs (a)(1)(i), (a)(1)(iii), (a)(2)(i)(J), and (a)(2)(i)(K)(v); b. Revising paragraph (b)(10); c. Removing paragraph (c) and redesignating paragraphs (d), (e), and (f) as paragraphs (c), (d), and (e); and d. Revising newly redesignated paragraphs (d)(3) and (d)(5).

The revisions read as follows:

§ 1753.38 Procurement procedures.

(a) * * *

(1) * * *

(i) After RUS approval of the specifications and equipment requirements (required only for projects expected to exceed $500,000 or 25% of the loan, whichever is less), the borrower shall send “Notice and Instructions to Bidders” to suppliers with central office equipment.

(iii) Equipment Contract, RUS Contract Form 395 (RUS Contract Form 395) shall be used, except that the “Notice” shall state that prior to the bid opening a technical session will be conducted with each supplier to resolve any questions related to the technical proposal submitted by the supplier. The suppliers' technical proposals should be requested for presentation 30 days in advance of the bid opening to enable sufficient time to make the technical evaluation.

(2) * * *

(i) * * *

(J) Some types of equipment contain software. RUS Contract Form 395 indicates whether the equipment contains software and whether the software contract stipulations are applicable.

(K) * * *

(v) After evaluation of the technical proposals and RUS approval of the changes to P&S (required only for projects that are expected to exceed $500,000 or 25% of the loan, whichever is less), sealed bids shall be solicited from only those bidders whose technical proposals meet P&S requirements. When fewer than three bidders are adjudged qualified by the borrower to bid, RUS approval must be obtained to proceed. Generally, RUS will grant such approval only if the borrower can demonstrate to the satisfaction of RUS that a good faith effort was made to obtain at least three competitive bids.

(b) * * *

(10) Installation of the central office equipment and materials provided under RUS Contract Form 395 may be made in accordance with subpart I, if applicable, or by an approved Force Account Proposal (FAP).

(d) * * *

(3) If RUS approval was required by paragraph (d)(2) of this section, upon RUS approval the purchase may be made using RUS Contract Form 395, or when applicable, the procedures contained in subpart I of this part.

(5) Installation of the central office equipment and materials procured by RUS Contract Form 395 without installation may be made in accordance with subpart I, if applicable, or by an approved FAP.

10. Revise § 1753.39 to read as follows:
§ 1753.39 Closeout documents.

Closeout of Equipment Contract, RUS Contract Form 395 (RUS Contract Form 395) (including or not including installation) shall be conducted as follows:

(a) Contract amendments. Amendments that must be submitted to RUS for approval, as required by § 1753.11, shall be submitted promptly. All other amendments may be submitted to RUS with the engineer's contract closeout certification.

(b) Acceptance tests. The borrower will perform acceptance tests as part of the partial closeout and final closeout of RUS Contract Form 395 that will demonstrate compliance with the requirements as specified by the borrower's engineer in the Performance Requirements. Other tests demonstrating compliance will be acceptable.

(c) Grounding system audit. A grounding system audit shall be performed and found acceptable for equipment provided under RUS Contract Form 395, (including or not including installation), prior to placing a central office or remote switching terminal into full service operation. The audits are to be conducted in accordance with the requirements specified by the borrower's engineer in the Performance Requirements. The audits shall be performed by the contractor and borrower when using the RUS Contract Form 395 with equipment installation and by the borrower when using the RUS Contract Form 395 without equipment installation.

(d) Partial Closeout Procedure. Under conditions set forth in RUS Contract Form 395, a contractor may, when approved by the borrower, receive payment in full for central offices and their respective associated remote switching terminals upon completion of the installation without awaiting completion of the project. The contractor is to receive such payment, according to procedures contained in the applicable sections of RUS Contract Form 395. In addition to complying with the appropriate partial closeout procedure contained in RUS Contract Form 395, the borrower shall:

(1) Obtain from the engineer a certification of partial closeout; and

(2) Submit one copy of the summary to RUS with an FRS.

(e) Final contract closeout procedure. The documents required for the final closeout of the equipment contract, RUS Contract Form 395 with or without installation, are listed in the Table 1 to paragraph (e), which also indicates the number of copies and their distribution.

Table 1 to Paragraph (e)—Documents Required To Close Out Equipment Contract, RUS Contract Form 395 RUS Form No. Description Number of copies prepared by Seller Engineer Distribution Buyer Seller 213 Certificate (Buy American) 1 1 238 Construction or Equipment Contract Amendment (If not previously submitted, send to RUS for approval) 3 sent to RUS 1 from RUS 1 from RUS. 395a Certificate of Completion for Equipment Contract (Including Installation) 2 1 1. 395b Certificate of Completion for Equipment Contract (Not Including Installation) 2 1 1. 395c Certificate of Contractor and Indemnity Agreement (Use only for installation contracts) 1 1 None Report in writing, including all measurements, any acceptance test report and other information required under Part II of the applicable specifications (Form 395d may be used) 1 1 None Set of maintenance recommendations for all equipment furnished under the contract 1 1

(f) Once RUS approval has been obtained for any required amendments, the borrower shall obtain certifications from the engineer that the project and all required documentation are satisfactory and complete. The requirements for the final contract certification are contained in § 1753.18.

(g) Once these certifications have been received, final payment shall be made according to the payment terms of the contract. Copies of the certifications shall be submitted with the FRS, requesting the remaining funds on the contract.

Subpart H—Purchase and Installation of Special Equipment 11. Revise § 1753.66 to read as follows:
§ 1753.66 General.

(a) This subpart implements and explains the provisions of the Loan Documents setting forth the requirements and the procedures to be followed by borrowers in purchasing and installing special equipment financed with loan funds.

(b) Terms used in this subpart are defined in § 1753.2 and Equipment Contract, RUS Contract Form 395 (RUS Contract Form 395).

(c) Borrowers must obtain RUS review and approval of the LD for their telephone systems. Applications of equipment not included in an approved LD must conform to the modernization plan as required by 7 CFR part 1751, subpart B, and must be submitted to RUS for review and approval.

(d) RUS Contract Form 395 and applicable specifications shall be used for the purchase of special equipment for major construction on a furnish-and-install basis, as well as on a furnish-only basis.

(e) The procedures provided in subpart I, if applicable, or a FAP approved by RUS may be used for the installation of special equipment purchased with a RUS Contract Form 395 contract not including installation.

(f) For special equipment purchases for minor construction, the borrower may at its option use the Methods of Minor Construction procedures contained in subpart I or the purchase procedures contained in this subpart H.

(g) Some types of special equipment contain software. RUS Contract Form 395 indicates whether the equipment contains software and whether the software contract stipulations are applicable.

12. Revise § 1753.67 to read as follows:
§ 1753.67 Contracts and specifications.

(a) Equipment Contract, RUS Contract Form 395 shall be used to purchase equipment on a furnish-and-install basis, as well as on a furnish-only basis.

(b) The equipment specifications must accompany the equipment contract form and each specification consists of performance specifications, installation requirements (if applicable), and application engineering requirements.

13. Amend § 1753.68: a. In paragraph (a)(1)(iv) by removing the term “Form 398 Contract” and adding in its place “Equipment Contract, RUS Contract Form 395 (RUS Contract Form 395) without installation” ; b. In paragraph (a)(8) by removing the term “Form 397” and adding in its place “RUS Contract Form 395”; c. By revising paragraph (a)(9); d. In the heading of paragraph (d)(1) by removing the term “Form 397” and adding in its place “RUS Contract Form 395 with installation”; e. By revising paragraph (d)(2) ; f. In paragraph (d)(3)(i) by removing the phrase “special equipment contract” and adding in its place the phrase “equipment contract”; and g. By revising the table in paragraph (d)(3)(i).

The revisions read as follows:

§ 1753.68 Purchasing special equipment.

(a) * * *

(9) The specifications for the various applications of equipment is prepared by the RUS borrower's engineer and based on generally accepted engineering considerations and practices found in the Telecommunications Industry.

(d) * * *

(2) Acceptance tests for RUS Contract Form 395 without installation. (Upon completion of the installation and alignment of the equipment (under this contract the installation alignment will be by other than the seller) the borrower shall perform all the inspections and tests outlined in the specifications.

Table 1 to Paragraph (d)(3)(i)—Documents Required To Close Out Equipment Contract, RUS Contract Form 395 RUS Form No. Description Number of copies prepared by Seller Engineer Distribution Buyer Seller 213 Certificate (Buy American) 1 1 238 Construction or Equipment Contract Amendment (If not previously submitted, send to RUS for approval) 3 sent to RUS 1 sent to RUS 1 from RUS. 395a Certificate of Completion for Equipment Contract (Including Installation) 2 1 1. 395b Certificate of Completion for Equipment Contract (Not Including Installation) 2 1 1. 395c Certificate of Contractor and Indemnity Agreement (Use only for installation contracts) 1 None Report in writing, including all measurements, any acceptance test report and other information required under Part II of the applicable specifications. (Form 395d may be used.) 1 1 None Set of maintenance recommendations for all equipment furnished under the contract 1 1
Subpart I—Minor Construction 14. Amend § 1753.80 by: a. Removing in paragraph (b)(3) the phrase “special equipment” and adding in its place “equipment”; and b. Revising paragraph (d)(2).

The revision reads as follows:

§ 1753.80 Minor construction procedure.

(d) * * *

(2) All standard RUS procedures are followed, including the application of RUS construction practices (see § 1753.6).

Subpart J—Construction Certification Program
§ 1753.93 [Amended]
15. In § 1753.93, remove paragraphs (b)(7) and (8) and redesignate paragraphs (b)(9) through (13) as (b)(7) through (11).
§ 1753.96 [Amended]
16. Amend the Certification Addendum in § 1753.96 by removing the words “or Rural Telephone Bank,” from the second sentence. PART 1755—TELECOMMUNICATIONS POLICIES ON SPECIFICATIONS, ACCEPTABLE MATERIALS, AND STANDARD CONTRACT FORMS 17. The authority citation for part 1755 continues to read as follows: Authority:

7 U.S.C. 901 et seq., 7 U.S.C. 1921 et seq., 7 U.S.C. 6941 et seq.

18. Amend § 1755.30 by revising paragraphs (c)(25) through (c)(45), and removing paragraphs (c)(46) through paragraphs (c)(56)to read as follows:
§ 1755.30 List of telecommunications standard contract forms.

(c) * * *

(25) RUS Form 395, October 18, 2016, Equipment Contract.

(26) RUS Form 395a, October 18, 2016, Equipment Contract Certificate of Completion (Including Installation).

(27) RUS Form 395b, October 18, 2016, Equipment Contract Certificate of Completion (Not Including Installation).

(28) RUS Form 395c, October 18, 2016, Certificate of Contractor and Indemnity Agreement.

(29) RUS Form 395d, October 18, 2016, Results of Acceptance Tests.

(30) RUS Form 506, issued 3-97, Statement of Engineering Fee—Telecommunications.

(31) RUS Form 515, issued September 17, 2001, Telecommunications Systems Construction Contract (Labor and Materials).

(32) RUS Form 526, issued 8-66, Construction Contract Amendment.

(33) RUS Form 527, issued 3-71, Statement of Construction, Telephone System “Outside Plant”.

(34) RUS Form 553, issued 5-67, Check List for Review of Plans and Specifications.

(35) RUS Form 724, issued 10-63, Final Inventory, Telephone Construction Contract.

(36) RUS Form 724a, issued 4-61, Final Inventory, Telephone Construction—Telephone Construction Contract (Labor and Materials), columns 1-8.

(37) RUS Form 724b, issued 3-61, Final Inventory, Telephone Construction Contract (Labor and Materials), columns 9-14.

(38) RUS Form 771, issued 10-75, Summary of Work Orders (Inspected by RUS Field Engineer).

(39) RUS Form 771a, issued 10-75, Summary of Work Orders (Inspected by Licensed Engineer or Borrower's Staff Engineer).

(40) RUS Form 773, issued 12-90, Miscellaneous Construction Work and Maintenance Services Contract.

(41) RUS Form 787, issued 8-63, Supplement A to Construction Contract.

(42) RUS Form 817, issued 6-60, Final Inventory, Telephone Force Account Construction.

(43) RUS Form 817a, issued 6-60, Final Inventory, Telephone Force Account Construction, columns 1-8.

(44) RUS Form 817b, issued 6-60, Final Inventory, Telephone Force Account Construction, Columns 9-14.

(45) RUS Form 835, issued 3-66, Preloan Engineering Service Contract, Telephone System Design.

Dated: October 5, 2016. Brandon McBride, Administrator, Rural Utilities Service.
[FR Doc. 2016-24945 Filed 10-17-16; 8:45 am] BILLING CODE P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-3629; Directorate Identifier 2015-NM-011-AD; Amendment 39-18662; AD 2016-19-13] RIN 2120-AA64 Airworthiness Directives; Dassault Aviation Airplanes AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain Dassault Aviation Model MYSTERE-FALCON 50, MYSTERE-FALCON 900, FALCON 900EX, FALCON 2000, and FALCON 2000EX airplanes. This AD was prompted by a report of an in-flight lightning strike to the WHELEN anti-collision light located on the top of the vertical fin tip that caused severe damage and resulted in the loss of some airplane functions. This AD requires modification of the anti-collision light bonding. We are issuing this AD to prevent loss of electrical power and essential airplane functions, and possible reduced control of the airplane.

DATES:

This AD is effective November 22, 2016.

The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of November 22, 2016.

ADDRESSES:

For service information identified in this final rule, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; Internet http://www.dassaultfalcon.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3629.

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-2015-3629; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Tom Rodriguez, Aerospace Engineer, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1137; fax 425-227-1139.

SUPPLEMENTARY INFORMATION:

Discussion

We issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Dassault Aviation Model MYSTERE-FALCON 50, MYSTERE-FALCON 900, FALCON 900EX, FALCON 2000, and FALCON 2000EX airplanes. The SNPRM published in the Federal Register on June 17, 2016 (81 FR 39597) (“the SNPRM”). We preceded the SNPRM with a notice of proposed rulemaking (NPRM) that published in the Federal Register on September 24, 2015 (80 FR 57545) (“the NPRM”). The NPRM proposed to require modification of the anti-collision light bonding. The NPRM was prompted by a report of an in-flight lightning strike to the WHELEN anti-collision light located on the top of the vertical fin tip that caused severe damage and induced the loss of some airplane functions. The SNPRM proposed to clarify the applicability. We are issuing this AD to prevent loss of electrical power and essential airplane functions, and possible reduced control of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0006, dated January 15, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Dassault Aviation Model MYSTERE-FALCON 50, MYSTERE-FALCON 900, FALCON 900EX, FALCON 2000, and FALCON 2000EX airplanes. The MCAI states:

An occurrence was reported where a Falcon 2000 aeroplane experienced an in-flight lightning strike, which caused severe damage and induced the loss of some aeroplane functions. The investigation results revealed that the entering point of the lightning was at the WHELEN anti-collision light located on the top of the vertical fin tip.

When the lightning strike hit the anti-collision light, an electric arc occurred between the aeroplane structure and the anti-collision light and created a conductive path by which the lightning current entered inside the aeroplane. Further analysis has determined that the electrical bonding between the WHELEN anti-collision light, Part Number (P/N) 01-0790044-09, and the fin tip fairing or the No. 2 engine air intake cover is insufficient to withstand a lightning strike.

In case of severe lightning, this condition, if not corrected, could lead to an unsafe condition (loss of electrical power and/or of essential functions) possibly resulting in reduced control of the aeroplane.

To address this potential unsafe condition, Dassault Aviation developed a modification (mod) to improve the WHELEN anti-collision light bonding when the anti-collision light is located on top of the vertical fin tip or on No. 2 engine air intake cover, and issued several Service Bulletins (SB) to modify all affected aeroplanes in service.

For the reasons described above, this [EASA] AD requires modification of the anti-collision light bonding.

You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3629. Comments

We gave the public the opportunity to participate in developing this AD. We received no comments on the SNPRM or on the determination of the cost to the public.

Conclusion

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

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

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

Related Service Information Under 1 CFR Part 51

We reviewed the following service information.

• Dassault Service Bulletin F50-481, Revision 1 (also referred to as 481-R1), dated January 26, 2015.

• Dassault Service Bulletin F900-372, Revision 1 (also referred to as 372-R1), dated January 26, 2015.

• Dassault Service Bulletin F900-378, Revision 1 (also referred to as 378-R1), dated January 26, 2015.

• Dassault Service Bulletin F900EX-285, Revision 1 (also referred to as 285-R1), dated January 26, 2015.

• Dassault Service Bulletin F900EX-305, Revision 1 (also referred to as 305-R1), dated January 26, 2015.

• Dassault Service Bulletin F2000-337, Revision 1 (also referred to as 337-R1), dated January 26, 2015.

• Dassault Service Bulletin F2000EX-108, Revision 1 (also referred to as 108-R1), dated January 26, 2015.

The service information describes procedures for modifying the anti-collision light bonding. These documents are distinct since they apply to different airplane models in different configurations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Costs of Compliance

We estimate that this AD affects 778 airplanes of U.S. registry.

We also estimate that it would take about 12 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts would cost about $801 per product. Based on these figures, we estimate the cost of this AD on U.S. operators to be $1,416,738, or $1,821 per product.

Authority for This Rulemaking

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

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

Regulatory Findings

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

List of Subjects in 14 CFR Part 39

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

Adoption of the Amendment

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

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

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

§ 39.13 [Amended]
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-19-13 Dassault Aviation: Amendment 39-18662; Docket No. FAA-2015-3629; Directorate Identifier 2015-NM-011-AD. (a) Effective Date

This AD is effective November 22, 2016.

(b) Affected ADs

None.

(c) Applicability

This AD applies to Dassault Aviation airplanes, certificated in any category, identified in figure 1 to paragraph (c) of this AD.

Figure 1 to Paragraph (c) of This AD—Applicability Airplanes Configuration Except airplanes modified through: 1 Dassault modification
  • embodied in
  • production
  • Service bulletin in service
    Dassault Aviation Model MYSTERE-FALCON 50 airplanes M1853 has been embodied in production or in service through Dassault Service Bulletin F50-241 M2083 or M3094 2 Dassault Service Bulletin F50-257. Dassault Aviation Model MYSTERE-FALCON 900 airplanes Group 1: M1682 has been embodied in production or in service through Dassault Service Bulletin F900-182 3 M5381 Not applicable. Group 2: M1682 has been embodied in production or in service through Dassault Service Bulletin F900-182 and Modification M1947 is embodied in production or in service through Dassault Service Bulletin F900-176 4 M5386 Not applicable. Dassault Aviation Model FALCON 900EX airplanes Group 1: M1682 has been embodied in production or in service through Dassault Service Bulletin F900EX-025 3 M5381 Not applicable. Group 2: M1682 has been embodied in production or in service through Dassault Service Bulletin F900EX-025 and Modification M1947 is embodied in production or in service through Dassault Service Bulletin F900EX-19 4 M5103 or M5386 Not applicable. Dassault Aviation Model FALCON 2000 airplanes M331 has been embodied in production or in service through Dassault Service Bulletin F2000-44 M810 or M1061 or M2778 Dassault Service Bulletin F2000-111. Dassault Aviation Model FALCON 2000EX airplanes M1802 has been embodied in production M810 or M1061 or M2778 Not applicable. 1 The excluded airplanes, as specified in figure 1 to paragraph (c) of this AD—Applicability, embody either one modification in production or one service bulletin in service, as applicable. 2 Modification M2083, Dassault Service Bulletin F50-257, Modification M1947, Dassault Service Bulletin F900-176, Dassault Service Bulletin F900EX-19, Modification M5103, as applicable, introduce fin tip SATCOM fairing, in production or in service. 3 Group 1: Airplanes with WHELEN anti-collision light located on top of the vertical fin tip. 4 Group 2: Airplanes with WHELEN anti-collision light located on top of the engine No. 2 air intake cover.
    (d) Subject

    Air Transport Association (ATA) of America Code 33, Lights.

    (e) Reason

    This AD was prompted by a report of an in-flight lightning strike to the WHELEN anti-collision light located on the top of the vertical fin tip that caused severe damage and resulted in the loss of some airplane functions. We are issuing this AD to prevent loss of electrical power and essential airplane functions, and possible reduced control of the airplane.

    (f) Compliance

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

    (g) Modification

    Within 24 months after the effective date of this AD, modify the anti-collision light bonding, in accordance with the Accomplishment Instructions of the applicable service information specified in paragraphs (g)(1) through (g)(7) of this AD.

    (1) For Model MYSTERE-FALCON 50 airplanes: Dassault Service Bulletin F50-481, Revision 1 (also referred to as 481-R1), dated January 26, 2015.

    (2) For Model MYSTERE-FALCON 900 airplanes with the WHELEN system installed on the vertical fin tip: Dassault Service Bulletin F900-372, Revision 1 (also referred to as 372-R1), dated January 26, 2015.

    (3) For Model MYSTERE-FALCON 900 airplanes with the WHELEN system installed on the S-duct cowl: Dassault Service Bulletin F900-378, Revision 1 (also referred to as 378-R1), dated January 26, 2015.

    (4) For Model FALCON 900EX airplanes with the WHELEN system installed on the vertical fin tip: Dassault Service Bulletin F900EX-285, Revision 1 (also referred to as 285-R1), dated January 26, 2015.

    (5) For Model FALCON 900EX airplanes with the WHELEN system installed on the S-duct cowl: Dassault Service Bulletin F900EX-305, Revision 1 (also referred to as 305-R1), dated January 26, 2015.

    (6) For Model FALCON 2000 airplanes: Dassault Service Bulletin F2000-337, Revision 1 (also referred to as 337-R1), dated January 26, 2015.

    (7) For Model FALCON 2000EX airplanes: Dassault Service Bulletin F2000EX-108, Revision 1 (also referred to as 108-R1), dated January 26, 2015.

    (h) Credit for Previous Actions

    This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using the applicable service information identified in paragraphs (h)(1) through (h)(7) of this AD.

    (1) For Model MYSTERE-FALCON 50 airplanes: Dassault Service Bulletin F50-481, dated August 22, 2007.

    (2) For Model MYSTERE-FALCON 900 airplanes with the WHELEN system installed on the vertical fin tip: Dassault Service Bulletin F900-372, dated August 22, 2007.

    (3) For Model MYSTERE-FALCON 900 airplanes with the WHELEN system installed on the S-duct cowl: Dassault Service Bulletin F900-378, dated September 19, 2007.

    (4) For Model FALCON 900EX airplanes with the WHELEN system installed on the vertical fin tip: Dassault Service Bulletin F900EX-285, dated July 18, 2007.

    (5) For Model FALCON 900EX airplanes with the WHELEN system installed on the S-duct cowl: Dassault Service Bulletin F900EX-305, dated September 19, 2007.

    (6) For Model FALCON 2000 airplanes: Dassault Service Bulletin F2000-337, dated July 25, 2007.

    (7) For Model FALCON 2000EX airplanes: Dassault Service Bulletin F2000EX-108, dated July 25, 2007.

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015-0006, dated January 15, 2015, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3629.

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

    (j) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2015-0006, dated January 15, 2015, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-3629.

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

    (k) Material Incorporated by Reference

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

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

    (i) Dassault Service Bulletin F50-481, Revision 1 (also referred to as 481-R1), dated January 26, 2015.

    (ii) Dassault Service Bulletin F900-372, Revision 1 (also referred to as 372-R1), dated January 26, 2015.

    (iii) Dassault Service Bulletin F900-378, Revision 1 (also referred to as 378-R1), dated January 26, 2015.

    (iv) Dassault Service Bulletin F900EX-285, Revision 1 (also referred to as 285-R1), dated January 26, 2015.

    (v) Dassault Service Bulletin F900EX-305, Revision 1 (also referred to as 305-R1), dated January 26, 2015.

    (vi) Dassault Service Bulletin F2000-337, Revision 1 (also referred to as 337-R1), dated January 26, 2015.

    (vii) Dassault Service Bulletin F2000EX-108, Revision 1 (also referred to as 108-R1), dated January 26, 2015.

    (3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; Internet http://www.dassaultfalcon.

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

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

    Issued in Renton, Washington, on September 14, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-22832 Filed 10-17-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-3703; Directorate Identifier 2015-NM-115-AD; Amendment 39-18669; AD 2016-20-03] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 767-200, -300, and -400ER series airplanes. This AD was prompted by an evaluation by the design approval holder (DAH) indicating that the skin lap splice is subject to widespread fatigue damage (WFD). This AD requires repetitive external detailed and surface high frequency eddy current (HFEC) inspections of the outer skin for cracking around fastener heads common to the inboard fastener row of the skin lap splice and corrective action. We are issuing this AD to detect and correct fatigue cracking of the skin lap splice, which could grow and result in possible rapid decompression and reduced structural integrity of the airplane.

    DATES:

    This AD is effective November 22, 2016.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 22, 2016.

    ADDRESSES:

    For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone: 206-544-5000, extension 1; fax: 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-3703.

    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-2016-3703; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Wayne Lockett, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6447; fax: 425-917-6590; email: [email protected].

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 767-200, -300, and -400ER series airplanes. The NPRM published in the Federal Register on February 25, 2016 (81 FR 9367) (“the NPRM”). The NPRM was prompted by an evaluation by the DAH indicating that the skin lap splice is subject to WFD. The NPRM proposed to require repetitive external detailed and surface HFEC inspections of the outer skin for cracking around fastener heads common to the inboard fastener row of the skin lap splice. We are issuing this AD to detect and correct fatigue cracking of the skin lap splice, which could grow and result in possible rapid decompression and reduced structural integrity of the airplane.

    Comments

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

    Effect of Winglets on Accomplishment of the Proposed Actions

    Aviation Partners Boeing stated that accomplishing the supplemental type certificate (STC) ST01920SE does not affect the actions specified in the NPRM.

    We concur with the commenter. We have redesignated paragraph (c) of this AD as (c)(1) and added new paragraph (c)(2) to this AD to state that installation of STC ST01920SE does not affect the ability to accomplish the actions required by this final rule. Therefore, for airplanes on which STC ST01920SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

    Request To Revise the Compliance Time for the Repetitive Inspection Intervals

    United Airlines (UAL) requested that we revise the repetitive inspection intervals for any repair accomplished using the structural repair manual (SRM) specified in Part 2 of Boeing Alert Service Bulletin 767-53A0260, dated August 26, 2014. UAL commented that a Zone B repair is Category B, and per the SRM inspections, the airplanes would have an initial inspection at 25,000 total flight cycles after airplane delivery. UAL stated that the initial inspection compliance time for the proposed rule is 40,000 total flight cycles, and if a repair is accomplished at this time, it is already over the initial inspection threshold specified in the SRM.

    We agree with the commenter's request. There is a conflict between the initial inspection thresholds in Boeing Alert Service Bulletin 767-53A0260, dated August 26, 2014, and the Category B repair specified in the SRM. We are working with Boeing to revise the conflicting compliance times for the SRM repairs. We have added a new paragraph (h) in this AD, which provides clarification that the post-repair damage tolerance inspections are not required by this AD, but are airworthiness limitations (ALIs), and those inspections are required by maintenance and operational rules. Any deviation from the post-repair ALI inspections will need FAA approval, but will not require an AMOC. We have coordinated this change with Boeing. We redesignated subsequent paragraphs accordingly.

    Request To Clarify the Note in the Service Information

    UAL requested that we clarify the note in paragraph 3.B.l. of the Accomplishment Instructions of Boeing Alert Service Bulletin 767-53A0260, dated August 26, 2014, to state that inspections for any repair accomplished as a result of Part 1 findings are to be inspected per the Part 1 inspection requirements and that these supersede the SRM inspection requirements. UAL stated that the note in Paragraph 3.B.1. of the Accomplishment Instructions of Boeing Alert Service Bulletin 767-53A0260, dated August 26, 2014, currently states that it is not necessary to repeat the Part 1 inspections in areas covered by a previously approved repair.

    We disagree with the commenter's request. Note (a) in paragraph 1.E, “Compliance,” and the note in paragraph 3.B.1. of the Accomplishment Instructions of Boeing Alert Service Bulletin 767-53A0260, dated August 26, 2014, specify terminating action for the AD-mandated inspections for the area under an approved repair. The repairs are evaluated under their own damage tolerance inspection program. The post-repair inspection program is different from the baseline inspections specified in Part 1 of Boeing Alert Service Bulletin 767-53A0260, dated August 26, 2014. Post-repair damage tolerance inspections for any approved repair are ALIs, and these inspections are required by maintenance and operational rules. It is therefore unnecessary to mandate them in this AD. Deviations from these inspections require FAA approval, but do not require an AMOC. We have not changed this AD in this regard.

    Conclusion

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

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

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

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

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin 767-53A0260, dated August 26, 2014. The service information describes procedures for a detailed inspection and a surface HFEC inspection at section 41, stringer S-2R skin lap splice from body station (STA) 368 to STA 434, for any cracking, and repair. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 356 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S. operators Inspections 3 work-hours × $85 per hour = $255 per inspection cycle $0 $255 per inspection cycle $90,780 per inspection cycle.

    We have received no definitive data that will enable us to provide cost estimates for the on-condition actions specified in this AD.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-20-03 The Boeing Company: Amendment 39-18669; Docket No. FAA-2016-3703; Directorate Identifier 2015-NM-115-AD. (a) Effective Date

    This AD is effective November 22, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    (1) This AD applies to the Boeing Company Model 767-200, -300, and -400ER series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 767-53A0260, dated August 26, 2014.

    (2) Installation of Supplemental Type Certificate (STC) ST01920SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/59027F43B9A7486E86257B1D006591EE?OpenDocument&Highlight=st01920se) does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01920SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

    (d) Subject

    Air Transport Association (ATA) of America Code 53, Fuselage.

    (e) Unsafe Condition

    This AD was prompted by an evaluation by the design approval holder indicating that the skin lap splice is subject to widespread fatigue damage. We are issuing this AD to detect and correct fatigue cracking of this skin lap splice, which could grow and result in possible rapid decompression and reduced structural integrity of the airplane.

    (f) Compliance

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

    (g) Inspection and Corrective Actions

    At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-53A0260, dated August 26, 2014, except as required by paragraph (i) of this AD: Do a detailed inspection and a surface high frequency eddy current (HFEC) inspection at section 41, stringer S-2R skin lap splice from body station (STA) 368 to STA 434, for any cracking, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 767-53A0260, dated August 26, 2014. Do all applicable corrective actions before further flight. Repeat the inspections thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 767-53A0260, dated August 26, 2014. If any existing external repair is found in the inspection area, then the inspections in Part 1 of the Accomplishment Instructions of Boeing Alert Service Bulletin 767-53A0260, dated August 26, 2014, are not required in the area hidden by the repair, provided that the repair was previously approved by the Manager, Seattle Aircraft Certification Office (ACO), or by the Authorized Representative of the Boeing Commercial Airplanes Organization Designation Authorization (ODA), or installed as specified in Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 767-53A0260, dated August 26, 2014. Inspections in Part 1 of the Accomplishment Instructions of Boeing Alert Service Bulletin 767-53A0260, dated August 26, 2014, remain applicable in areas not hidden by the repair.

    (h) Post-Repair Inspections

    Repairs identified in Part 2 of Boeing Alert Service Bulletin 767-53A0260, dated August 26, 2014, specify post-repair airworthiness limitation inspections for compliance with 14 CFR 25.57l(a)(3) at the repaired locations, which support compliance with 14 CFR 121.1109(c)(2) or 129.109(b)(2). As airworthiness limitations, these inspections are required by maintenance and operational rules. It is therefore unnecessary to mandate them in this AD. Deviations from these inspections require FAA approval, but do not require an AMOC.

    (i) Exception to the Service Information

    Where Boeing Alert Service Bulletin 767-53A0260, dated August 26, 2014, specifies a compliance time “after the original issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (j) Alternative Methods of Compliance (AMOCs)

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

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

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

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

    (i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

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

    (k) Related Information

    For more information about this AD, contact Wayne Lockett, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle ACO, 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6447; fax: 425-917-6590; email: [email protected].

    (l) Material Incorporated by Reference

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

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

    (i) Boeing Alert Service Bulletin 767-53A0260, dated August 26, 2014.

    (ii) Reserved.

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

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

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

    Issued in Renton, Washington, on September 16, 2016. Suzanne Masterson, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-23076 Filed 10-17-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-6640; Directorate Identifier 2015-SW-084-AD; Amendment 39-18683; AD 2016-21-02] RIN 2120-AA64 Airworthiness Directives; Sikorsky Aircraft Corporation Helicopters AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for Sikorsky Aircraft Corporation (Sikorsky) Model S-92A helicopters. This AD requires altering the fire bottle inertia switch wiring and performing a cartridge functional test of the fire extinguishing system. This AD was prompted by the inadvertent tripping of inertia-switches that has led to unintentional discharging of the fire bottles, leaving the helicopter's auxiliary power unit and engines without fire protection. The actions are intended to prevent unintentional and undetected fire bottle discharges and subsequent unavailability of fire suppression in case of a fire.

    DATES:

    This AD is effective November 22, 2016.

    The Director of the Federal Register approved the incorporation by reference of a certain document listed in this AD as of November 22, 2016.

    ADDRESSES:

    For service information identified in this final rule, contact Sikorsky Aircraft Corporation, Customer Service Engineering, 124 Quarry Road, Trumbull, CT 06611; telephone 1-800-Winged-S or 203-416-4299; email [email protected] You may review a copy of the referenced service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-6640.

    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-2016-6640; 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, any incorporated-by-reference service information, the economic evaluation, any comments received, and other information. The street address for the Docket Operations Office (phone: 800-647-5527) is U.S. Department of Transportation, Docket Operations Office, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Kris Greer, Aviation Safety Engineer, Boston Aircraft Certification Office, Engine & Propeller Directorate, 1200 District Avenue, Burlington, Massachusetts 01803; telephone (781) 238-7799; email [email protected]

    SUPPLEMENTARY INFORMATION: Discussion

    On May 13, 2016, at 81 FR 29817, the Federal Register published our notice of proposed rulemaking (NPRM), which proposed to amend 14 CFR part 39 by adding an AD that would apply to certain serial-numbered Sikorsky Model S-92A helicopters. Sikorsky has informed us that the inadvertent tripping of inertia switches has caused several engine and auxiliary power unit fire bottle discharges during taxi, flight, and landing operations. Because these discharges are undetected, the fire bottles remain unavailable in the event of a fire.

    The NPRM proposed to require altering the fire bottle inertia switch wiring to disable the automatic feature of the fire extinguishing system and performing a cartridge functional test. The proposed requirements were intended to prevent an unintentional and undetected fire bottle discharge and subsequent unavailability of fire suppression in the event of a fire.

    Since the NPRM was issued, the email address for Sikorsky has changed. We have revised this email address throughout this final rule.

    Comments

    We gave the public the opportunity to participate in developing this AD, but we did not receive any comments on the NPRM.

    FAA's Determination

    We have reviewed the relevant information and determined that an unsafe condition exists and is likely to exist or develop on other products of the same type design and that air safety and the public interest require adopting the AD requirements as proposed.

    Related Service Information Under 1 CFR Part 51

    We reviewed Sikorsky Alert Service Bulletin 92-26-005A, Revision A, dated June 27, 2014 (ASB 92-26-005A). ASB 92-26-005A specifies performing a one-time alteration of the fire bottle inertia switch wiring to disable the automatic actuation feature of the fire extinguishing system. ASB 92-26-005A includes figures that depict the wiring and electrical connector pin changes.

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

    Other Related Service Information

    We also reviewed Sikorsky Alert Service Bulletin 92-26-005, Basic Issue, dated June 18, 2014 (ASB 92-26-005). ASB 92-26-005 contains the same procedures as ASB 92-26-005A. However, ASB 92-26-005A contains an additional figure.

    Differences Between This AD and the Service Information

    This AD has a compliance date within 90 days, and the service information has a calendar date, which has already passed. This AD does not require performing a cartridge functional test prior to alteration. The service information does specify performing a cartridge functional test prior to alteration.

    Costs of Compliance

    We estimate that this AD will affect 80 helicopters of U.S. Registry.

    We estimate that operators may incur the following costs to comply with this AD. Labor costs are estimated at $85 per work-hour. Altering the fire bottle switch and performing a cartridge functional test will take about 2 work-hours. No parts are needed for an estimated cost of $170 per helicopter and $13,600 for the U.S. fleet.

    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.

    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): 2016-21-02 Sikorsky Aircraft Corporation: Amendment 39-18683; Docket No. FAA-2016-6640; Directorate Identifier 2015-SW-084-AD. (a) Applicability

    This AD applies to Model S-92A helicopters, serial number 920006 through 920250, certificated in any category.

    (b) Unsafe Condition

    This AD defines the unsafe condition as inadvertent tripping of a fire bottle inertia-switch. This condition results in an unintentional and undetected fire bottle discharge and subsequent unavailability of fire suppression in the event of a fire.

    (c) Effective Date

    This AD becomes effective November 22, 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

    Within 90 days:

    (1) Alter each fire bottle inertia switch by following the Accomplishment Instructions, paragraph 3.B., of Sikorsky Alert Service Bulletin 92-26-005A, Revision A, dated June 27, 2014.

    (2) Perform a cartridge functional test.

    (f) Credit for Actions Previously Completed

    Compliance with Sikorsky Alert Service Bulletin 92-26-005, Basic Issue, dated June 18, 2014, before the effective date of this AD is considered acceptable for compliance with the actions specified in paragraph (e) of this AD.

    (g) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Boston Aircraft Certification Office, FAA, may approve AMOCs for this AD. Send your proposal to: Kris Greer, Aviation Safety Engineer, Boston Aircraft Certification Office, Engine & Propeller Directorate,1200 District Avenue, Burlington, Massachusetts 01803; telephone (781) 238-7799; 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.

    (h) Additional Information

    Sikorsky Alert Service Bulletin 92-26-005, Basic Issue, dated June 18, 2014, which is not incorporated by reference, contains additional information about the subject of this final rule. For service information identified in this final rule, contact Sikorsky Aircraft Corporation, Customer Service Engineering, 124 Quarry Road, Trumbull, CT 06611; telephone 1-800-Winged-S or 203-416-4299; email [email protected] You may review a copy of this service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177.

    (i) Subject

    Joint Aircraft Service Component (JASC) Code: 2621 Fire Bottle, Fixed.

    (j) Material Incorporated by Reference

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

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

    (i) Sikorsky Alert Service Bulletin 92-26-005A, Revision A, dated June 27, 2014.

    (ii) Reserved.

    (3) For Sikorsky service information identified in this final rule, contact Sikorsky Aircraft Corporation, Customer Service Engineering, 124 Quarry Road, Trumbull, CT 06611; telephone 1-800-Winged-S or 203-416-4299; email [email protected]

    (4) You may view this service information at FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177. For information on the availability of this material at the FAA, call (817) 222-5110.

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

    Issued in Fort Worth, Texas, on October 3, 2016. Lance T. Gant, Manager, Rotorcraft Directorate, Aircraft Certification Service.
    [FR Doc. 2016-24738 Filed 10-17-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-6418; Directorate Identifier 2015-NM-158-AD; Amendment 39-18676; AD 2016-20-10] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for all Airbus Model A330-200 Freighter, -200, and -300 series airplanes; and Airbus Model A340-200, -300, -500, and -600 series airplanes. This AD was prompted by reports of fuel leaking through fuel pump electrical connectors and of fuel pump electrical connector damage caused by the build-up of moisture behind the electrical connectors. This AD requires an inspection of the fuel pumps to identify their part numbers and replacement of affected pumps. We are issuing this AD to prevent a potential ignition source and a fuel leak through damaged fuel pump electrical connectors, which creates a flammability risk in an area adjacent to the fuel tank.

    DATES:

    This AD is effective November 22, 2016.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of November 22, 2016.

    ADDRESSES:

    For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; Internet http://www.airbus.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-6418.

    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-2016-6418; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-227-1138; fax: 425-227-1149.

    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 Airbus Model A330-200 Freighter, -200, and -300 series airplanes; and Airbus Model A340-200, -300, -500, and -600 series airplanes. The NPRM published in the Federal Register on May 9, 2016 (81 FR 28033) (“the NPRM”). The NPRM was prompted by reports of fuel leaking through fuel pump electrical connectors and of fuel pump electrical connector damage caused by the build-up of moisture behind the electrical connectors. The NPRM proposed to require an inspection of the fuel pumps to identify their part numbers and replacement of affected pumps. We are issuing this AD to prevent a potential ignition source and a fuel leak through damaged fuel pump electrical connectors. This condition creates a flammability risk in an area adjacent to the fuel tank.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2015-0194, dated September 22, 2015, to correct an unsafe condition for all Airbus Model A330-200 Freighter, -200, and -300 series airplanes; and Airbus Model A340-200, -300, -500, and -600 series airplanes. The MCAI states:

    Operators reported cases of fuel leak through fuel pump electrical connectors. Subsequent investigation revealed fuel pump electrical connector damage caused by moisture build up behind the electrical connector.

    This condition, if not detected and corrected, could create concurrently an ignition source and fuel leak as a result of a single failure, resulting in exposure to a flammability risk in an adjacent area to the fuel tank.

    To address this unsafe condition, Airbus published Service Bulletins (SB) A330-28-3127, SB A340-28-4138 and SB A340-28-5060, providing inspection/identification instructions, and instructions for replacement of the fuel pumps.

    For the reasons described above, this [EASA] AD requires identification and replacement of the affected fuel pumps.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-6418.

    Comments

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

    Request To Clarify Compliance for Affected Pumps

    American Airlines (AAL) requested that we clarify which groups of pumps paragraphs (h)(1) and (h)(2) of the proposed AD are intended to control. Where individual items begin with “All of the affected pumps. . . .” AAL explained that paragraph (h) of the proposed AD must be intended to refer to all of the affected pumps on each airplane. AAL pointed out that this language creates a requirement for all airplanes that have one or more pumps having part number (P/N) 568-1-28300-001 or 568-1-28300-002 installed to be modified in accordance with the service information within 72 months. AAL asserted that consistent references to “each affected pump” confuse that interpretation and seem to imply that each pump is treated separately. If the intent is to control the compliance time for replacement at the pump level, AAL stated that it would be more efficient to simply state that -001 and -002 pumps must be replaced within 72 months, while -100 and -101 pumps must be replaced within 96 months. If the intent is to control the compliance time at the airplane level, AAL stated that the language throughout paragraph (h) of the proposed AD should be revised to reflect that intent; American provided some example language.

    We agree that this AD should specify the compliance times at the airplane level. Therefore, we have revised paragraphs (h)(1) and (h)(2) of this AD by replacing the text in the beginning of the sentences, “For affected fuel pumps that have . . . , ” with the text “For airplanes with fuel pumps that have . . .” in order to clearly identify the airplane configuration.

    Conclusion

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

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

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

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

    Related Service Information Under 1 CFR Part 51

    Airbus has issued the following service information:

    • Airbus Service Bulletin A330-28-3127, Revision 02, dated April 14, 2016.

    • Airbus Service Bulletin A340-28-4138, Revision 01, dated September 24, 2015.

    • Airbus Service Bulletin A340-28-5060, Revision 01, dated September 24, 2015.

    The service information describes procedures to identify and replace affected fuel pumps with serviceable fuel pumps. These documents are distinct since they apply to different airplane models. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 99 airplanes of U.S. registry.

    We also estimate that it will take about 4 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $33,660, or $340 per product.

    In addition, we estimate that any necessary follow-on actions would take about 17 work-hours and require parts costing $10,400, for a cost of $11,845 per product. We have no way of determining the number of airplanes that might need these actions.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-20-10 Airbus: Amendment 39-18676; Docket No. FAA-2016-6418; Directorate Identifier 2015-NM-158-AD. (a) Effective Date

    This AD is effective November 22, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Airbus Model A330-223F and -243F airplanes; Model A330-201, -202, -203, -223, and -243 airplanes; Model A330-301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes; Model A340-211, -212, and -213 airplanes; Model A340-311, -312, and -313 airplanes; Model A340-541 and A340-642 airplanes; certificated in any category; all manufacturer serial numbers.

    (d) Subject

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

    (e) Reason

    This AD was prompted by reports of fuel leaking through fuel pump electrical connectors and of fuel pump electrical connector damage caused by the build-up of moisture behind the electrical connectors. Electrical connections that become damaged by moisture can create an ignition source and a fuel leak. We are issuing this AD to prevent a potential ignition source and a fuel leak through damaged fuel pump electrical connectors, which creates a flammability risk in an area adjacent to the fuel tank.

    (f) Compliance

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

    (g) Identify Part Numbers (P/Ns)

    Within 48 months after the effective date of this AD, inspect each fuel pump to identify the part number, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-28-3127, Revision 02, dated April 14, 2016; Airbus Service Bulletin A340-28-4138, Revision 01, dated September 24, 2015; or Airbus Service Bulletin A340-28-5060, Revision 01, dated September 24, 2015; as applicable to airplane model. A review of airplane delivery or maintenance records is acceptable in lieu of this inspection if the part number of the fuel pump can be conclusively determined from that review.

    (h) Modification

    If, during the inspection required by paragraph (g) of this AD, it is determined that any affected fuel pump is installed: Within the compliance time specified in paragraph (h)(1) or (h)(2) of this AD, depending on the configuration of the affected fuel pumps installed, replace each affected fuel pump with a serviceable fuel pump, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-28-3127, Revision 02, dated April 14, 2016; Airbus Service Bulletin A340-28-4138, Revision 01, dated September 24, 2015; or Airbus Service Bulletin A340-28-5060, Revision 01, dated September 24, 2015; as applicable to airplane model.

    (1) For airplanes with fuel pumps that have a part number or combination of part numbers that are specified in paragraphs (h)(1)(i) through (h)(1)(vi) of this AD: Do the replacement within 72 months after the effective date of this AD.

    (i) All installed fuel pumps have P/N 568-1-28300-001.

    (ii) All installed fuel pumps have P/N 568-1-28300-002.

    (iii) Installed fuel pumps have a combination of P/Ns 568-1-28300-001 and 568-1-28300-002.

    (iv) Installed fuel pumps have a combination of P/Ns 568-1-28300-001 and 568-1-28300-101.

    (v) Installed fuel pumps have a combination of P/Ns 568-1-28300-002 and 568-1-28300-101.

    (vi) Installed fuel pumps have a combination of P/Ns 568-1-28300-001, 568-1-28300-002, and 568-1-28300-101.

    (2) For airplanes with fuel pumps that have a part number or combination of part numbers that are specified in paragraphs (h)(2)(i) through (h)(2)(iii) of this AD: Do the replacement within 96 months after the effective date of this AD.

    (i) All installed fuel pumps have P/N 568-1-28300-100.

    (ii) All installed fuel pumps have P/N 568-1-28300-101.

    (iii) Installed fuel pumps have a combination of P/Ns 568-1-28300-100 and 568-1-28300-101.

    (i) Definitions

    (1) For the purpose of this AD, an “affected fuel pump” is defined as any pump having P/N 568-1-28300-001, 568-1-28300-002, 568-1-28300-100, or 568-1-28300-101.

    (2) For the purpose of this AD, a “serviceable fuel pump” is a pump having a part number not listed in paragraph (i)(1) of this AD.

    (j) No Reporting Requirement

    Although Airbus Service Bulletin A330-28-3127, Revision 02, dated April 14, 2016; Airbus Service Bulletin A340-28-4138, Revision 01, dated September 24, 2015; and Airbus Service Bulletin A340-28-5060, Revision 01, dated September 24, 2015; specify submitting certain information to the manufacturer, and specifies that action as “RC” (Required for Compliance), this AD does not include that requirement.

    (k) Parts Installation Prohibition

    After the identification of the fuel pump part numbers required by paragraph (g) of this AD, comply with the prohibition required by paragraph (k)(1) or (k)(2) of this AD, as applicable.

    (1) For an airplane that does not have an affected fuel pump installed: After the identification of the fuel pump part numbers required by paragraph (g) of this AD, no person may install an affected fuel pump on the airplane.

    (2) For an airplane that has an affected fuel pump installed: After modification of the airplane as required by paragraph (h) of this AD, no person may install an affected fuel pump on the airplane.

    (l) Credit for Previous Actions

    This paragraph provides credit for actions required by paragraphs (g) and (h) of this AD, if those actions were performed before the effective date of this AD using the applicable service information specified in paragraphs (l)(1), (l)(2), (l)(3), and (l)(4) of this AD. This service information is not incorporated by reference in this AD.

    (1) Airbus Service Bulletin A330-28-3127, dated July 14, 2015.

    (2) Airbus Service Bulletin A330-28-3127, Revision 01, dated September 24, 2015.

    (3) Airbus Service Bulletin A340-28-4138, dated July 14, 2015.

    (4) Airbus Service Bulletin A340-28-5060, dated July 14, 2015.

    (m) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Vladimir Ulyanov, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone: 425-227-1138; fax: 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office. The AMOC approval letter must specifically reference this AD.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (3) Required for Compliance (RC): Except as provide by paragraph (j) of this AD, if any service information contains procedures or tests that are identified as RC, those procedures and tests must be done to comply with this AD; any procedures or tests that are not identified as RC are recommended. Those procedures and tests that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the procedures and tests identified as RC can be done and the airplane can be put back in an airworthy condition. Any substitutions or changes to procedures or tests identified as RC require approval of an AMOC.

    (n) Related Information

    (1) Refer to Continuing Airworthiness Information (MCAI) EASA AD 2015-0194, dated September 22, 2015, for related information. You may examine the MCAI on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2016-6418.

    (o) Material Incorporated by Reference

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

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

    (i) Airbus Service Bulletin A330-28-3127, Revision 02, dated April 14, 2016.

    (ii) Airbus Service Bulletin A340-28-4138, Revision 01, dated September 24, 2015.

    (iii) Airbus Service Bulletin A340-28-5060, Revision 01, dated September 24, 2015.

    (3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 45 80; email: [email protected]; Internet: http://www.airbus.com. You may view this service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

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

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

    Issued in Renton, Washington, on September 26, 2016. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-23647 Filed 10-17-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-8470; Directorate Identifier 2013-NM-199-AD; Amendment 39-18674; AD 2016-20-08] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We are superseding Airworthiness Directive (AD) 95-21-09 for all Airbus Model A300 series airplanes, and Airbus Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-605R Variant F airplanes (collectively called Model A300-600 series airplanes). AD 95-21-09 required repetitive inspections for cracking of the No. 2 flap beams, and replacement of the flap beams, if necessary; and provided optional modifications for extending certain inspection thresholds, and an optional terminating modification for certain inspections. This new AD requires reduced compliance times for inspections and also reduces the number of airplanes affected. This AD was prompted by a determination that the compliance times must be reduced. We are issuing this AD to detect and correct cracking of the No. 2 flap beams, which could result in rupture of the flap beams and reduced structural integrity of the airplane.

    DATES:

    This AD is effective November 22, 2016.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of November 22, 2016.

    The Director of the Federal Register approved the incorporation by reference of certain other publications listed in this AD as of November 17, 1995 (60 FR 53847, October 18, 1995).

    ADDRESSES:

    For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAW, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; Internet http://www.airbus.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-8470.

    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-2015-8470; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 95-21-09, Amendment 39-9395 (60 FR 53847, October 18, 1995) (“AD 95-21-09”). AD 95-21-09 applied to all Airbus Model A300 and A300-600 series airplanes. The NPRM published in the Federal Register on January 20, 2016 (81 FR 3045) (“the NPRM”).

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2013-0234R2, dated October 7, 2013 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A300 and A300-600 series airplanes. The MCAI states:

    Fatigue and “fail safe” tests developed on a test specimen confirmed that cracks may appear and propagate from the bolt holes of the base member and the side members of flap beam No. 2.

    The development of such cracks, if not detected, could result in a rupture of flap beams No. 2, which could adversely affect the structural integrity of the airframe.

    To address this potential unsafe condition, Airbus issued Service Bulletin (SB) A300-57-0116 and SB A300-57-6005 and DGAC [Direction Générale de l'Aviation Civile] France issued AD 1986-187-076(B), later revised, to require a repetitive inspection programme [and corrective action] for A300 and A300-600 aeroplanes. [French AD 86-187-076(B)R3, dated March 2, 1994, corresponds to FAA AD 95-21-09, which superseded FAA AD 85-07-04, Amendment 39-5027 (50 FR 13013, April 2, 1985).]

    For A300 aeroplanes, and in the frame of the Extended Service Goal (ESG) exercise, it was shown that design changes (Airbus Mod. 4740/Airbus SB A300-57-0128 or Airbus Mod. 5815/Airbus SB A300-57-0141) were not sufficient to enable full ESG life without inspections.

    For A300-600 aeroplanes, since DGAC France AD 1986-187-076(B) was issued, a fleet survey and updated Fatigue and Damage Tolerance analyses have been performed in order to substantiate the second A300-600 ESG2 exercise. Airbus SB A300-57-6005 has been revised accordingly to decrease the inspection thresholds and intervals.

    For the reasons described above, this [EASA] AD retains the requirements of DGAC France AD 1986-187-076(B)R4, which is superseded, and requires those inspections to be accomplished at reduced thresholds and intervals.

    This [EASA] AD has been revised to correct typographical errors in some compliance times defined in Appendix 1, Tables 1 and 2.

    The MCAI also reduces the number of airplanes identified in the applicability by exempting certain Model A300-600 airplanes on which certain Airbus modifications have been embodied. You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-8470.

    Comments

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

    Request To Remove Certain Exceptions in the Proposed Applicability

    United Parcel Service (UPS) requested that the applicability exceptions in paragraphs (c)(3) and (c)(4) of the proposed AD be revised to remove Airbus Modifications 11133 and 12699 as exceptions. UPS stated that the exceptions provided in paragraphs (c)(3) and (c)(4) of the proposed AD are inconsistent with the effectivity specified in the service information referenced in the NPRM. UPS pointed out that the effectivity of Airbus Service Bulletin A300-57-6005, Revision 06, dated November 14, 2013, applies to airplanes with manufacturer serial number (MSN) 775 and subsequent, with MSN 775 as the production cut-in for Airbus Modification 11133. UPS asserted that this service bulletin's effectivity also does not list all post-modification 11133 and 12699 airplanes. UPS stated that the determining factor for the service information effectivity is whether an airplane is approved for the extended service goal (ESG-2) operational life or not. UPS also pointed out that the effectivity of Airbus Service Bulletin A300-57-6005, Revision 06, dated November 14, 2013, does not include Model A300 F4-622 airplanes that are in a UPS configuration (Airbus Modifications 11133, 12047, 12048, 12050, but not 12699), which would mean UPS would need to request an alternative method of compliance (AMOC) or other means to show compliance for those airplanes.

    We acknowledge the concern UPS identified regarding the clarity of the AD applicability. Therefore, we have revised the applicability to match the related MCAI, which should address UPS's concern. We do not intend for this AD to affect UPS's specified A300 F4-622R configuration (Airbus Modifications 11133, 12047, 12048, 12050, but not 12699). We have revised paragraph (c)(4) of this AD accordingly. However, we do not agree to delete references to both Airbus Modifications 11133 and 12699 from the applicability of this AD since there are airplanes with these modifications in the worldwide fleet that might be imported and placed on the U.S. Register. Therefore, we have not removed references to Airbus Modifications 11133 and 12699 from paragraphs (c)(3) and (c)(4) of this AD.

    Request To Remove Typographical Error

    UPS requested that paragraph (l)(2) of the proposed AD be revised to remove a typographical error that resulted in listing Model A300 F4-622R airplanes twice.

    We agree that there was a typographical error, as described by UPS. We have removed the redundant reference in this AD.

    Additional Change to This AD

    We added new paragraph (m) to this AD to specify clearly the required calculation method for establishing the average flight times (AFT) for the compliance times for certain inspections required by this AD. We also redesignated subsequent paragraphs.

    Conclusion

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

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

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

    Related Service Information Under 1 CFR Part 51

    Airbus has issued Service Bulletins A300-57-0116, Revision 07, dated September 19, 2011, including Appendixes A and B; and A300-57-6005, Revision 06, dated November 14, 2013. This service information describes procedures for ultrasonic inspections of the No. 2 flap beam base and side members. These documents are distinct since they apply to different airplane models. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 49 airplanes of U.S. registry.

    The actions required by AD 95-21-09 and retained in this AD, take about 6 work-hours per product, at an average labor rate of $85 per work-hour. Required parts cost about $0 per product. Based on these figures, the estimated cost of the actions that were required by AD 95-21-09 is $510 per product, per inspection cycle.

    We also estimate that it takes about 6 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $24,990 per inspection cycle, or $510 per product, per inspection cycle.

    We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 95-21-09, Amendment 39-9395 (60 FR 53847, October 18, 1995), and adding the following new AD: 2016-20-08 Airbus: Amendment 39-18674; Docket No. FAA-2015-8470; Directorate Identifier 2013-NM-199-AD. (a) Effective Date

    This AD is effective November 22, 2016.

    (b) Affected ADs

    This AD replaces AD 95-21-09, Amendment 39-9395 (60 FR 53847, October 18, 1995) (“AD 95-21-09”).

    (c) Applicability

    This AD applies to the Airbus airplanes identified in paragraphs (c)(1) through (c)(5) of this AD, certificated in any category.

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

    (2) Airbus Model A300 B4-601, B4-603, B4-620, B4-622, B4-605R, and B4-622R airplanes, all MSNs.

    (3) Airbus Model A300 F4-605R, all MSNs, except those airplanes on which both Airbus Modifications 11133 and 12699 have been embodied.

    (4) Airbus Model A300 F4-622R airplanes, all MSNs, except those airplanes on which the modifications identified in paragraph (c)(4)(i) or (c)(4)(ii) of this AD have been embodied.

    (i) All Airbus Modifications 11133, 12047, 12048, and 12050 have been embodied.

    (ii) Both Airbus Modifications 11133 and 12699 have been embodied.

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

    (d) Subject

    Air Transport Association (ATA) of America Code 57, Wings.

    (e) Reason

    This AD was prompted by a determination that the compliance times must be reduced. We are issuing this AD to detect and correct cracking of the No. 2 flap beams, which could result in rupture of the flap beams and reduced structural integrity of the airplane.

    (f) Compliance

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

    (g) Retained Inspection and Corrective Actions for Model A300 Series Airplanes, With Note 3 of AD 95-21-09 Incorporated and Additional Terminating Provisions

    This paragraph restates the requirements of paragraph (a) of AD 95-21-09, with Note 3 of AD 95-21-09 incorporated and additional terminating provisions. For Model A300 series airplanes: Prior to the accumulation of 15,000 total landings, or within the next 120 days after May 9, 1985 (the effective date of AD 85-07-04, Amendment 39-5027 (50 FR 13013, April 2, 1985) (“AD 85-07-04”)), whichever occurs later, inspect for cracking of the base steel member and light alloy side members of the No. 2 flap beams, left hand and right hand, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-57-116, Revision 6, dated July 16, 1993. Accomplishing the requirements of paragraph (h) or (l) of this AD terminates the requirements of this paragraph. Measurement of crack length is performed by measurement of the probe displacement (perpendicular to symmetry plane of beam) between defect indication appearance and its complete disappearance. The bolt hole indication should not be interpreted as an indication of a defect. These two indications appear very close together because the defects originate from the bolt holes.

    (1) If no cracking is detected: Except as provided by paragraph (i) of this AD, repeat the inspection at intervals not to exceed 1,700 landings until the requirements of paragraph (h) or (l) of this AD are accomplished.

    (2) If any crack is detected that is less than or equal to 4 millimeters (mm): Repeat the inspection at intervals not to exceed 250 landings, until the requirements of paragraph (h) or (l) of this AD are accomplished.

    (3) If any crack is detected that exceeds 4 mm: Prior to further flight, replace the flap beam in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-57-116, Revision 6, dated July 16, 1993, and prior to the accumulation of 15,000 flight cycles on the replaced flap beam, perform the ultrasonic inspection as required by paragraph (h) or (l) of this AD.

    (h) Retained Ultrasonic Inspection and Corrective Action for Model A300 Series Airplanes, With Additional Terminating Provisions

    This paragraph restates the requirements of paragraph (b) of AD 95-21-09, with additional terminating provisions. For Model A300 series airplanes: Prior to the accumulation of 15,000 total landings, or within the next 1,000 landings after November 17, 1995 (the effective date of AD 95-21-09), whichever occurs later, perform an ultrasonic inspection to detect cracking of the No. 2 flap beams, in accordance with Airbus Service Bulletin A300-57-116, Revision 6, dated July 16, 1993. Accomplishment of this inspection terminates the inspections required by paragraph (g) of this AD. Accomplishment of the requirements of paragraph (l) of this AD terminates the requirements of this paragraph.

    (1) If no cracking is detected: Except as provided by paragraph (i) of this AD, repeat the ultrasonic inspections thereafter at intervals not to exceed 1,700 landings.

    (2) If any crack is detected beyond the bolt hole, and that crack is less than or equal to 4 mm in length: Repeat the ultrasonic inspections thereafter at intervals not to exceed 250 landings.

    (3) If any crack is detected beyond the bolt hole and that crack is greater than 4 mm in length: Prior to further flight, replace the flap beam in accordance with Airbus Service Bulletin A300-57-116, Revision 6, dated July 16, 1993; and prior to the accumulation of 15,000 flight cycles on the replaced flap beam, perform the ultrasonic inspection as required by this paragraph.

    (i) Retained Modification of the No. 2 Track Beam for Model A300 Series Airplanes, With Changes to Compliance Extension

    This paragraph restates the provisions of paragraph (c) of AD 95-21-09, with changes to compliance extension. For Model A300 series airplanes: After accomplishing the initial inspection required by paragraph (h) of this AD, accomplishment of either paragraph (i)(1) or (i)(2) of this AD before the effective date of this AD extends the fatigue life of the No. 2 flap track beam as specified in those paragraphs, provided that no cracking is detected during any inspection required by paragraph (g) or (h) of this AD.

    (1) Removal of any damage and the installation of larger diameter bolts on the No. 2 flap track beam (Modification No. 4740), in accordance with Airbus Service Bulletin A300-57-128, Revision 3, dated January 26, 1990, extends the interval for the first repetitive inspection required by paragraph (h) of this AD from 1,700 landings to 12,000 landings, provided that Modification No. 4740 is accomplished prior to the accumulation of 16,700 total landings on the flap beams. Following accomplishment of the first repetitive inspection, subsequent repetitive inspections shall be performed at intervals not to exceed 1,700 landings.

    (2) Cold working of the bolt holes and the installation of larger diameter bolts on the No. 2 flap track beam (Modification No. 5815), in accordance with Airbus Service Bulletin A300-57-141, Revision 7, dated July 16, 1993, extends the interval for the first repetitive inspection required by paragraph (h) of this AD from 1,700 landings to the interval specified in paragraph (i)(2)(i) or (i)(2)(ii) of this AD.

    (i) If interference fit bolts that are 15/32-inch in diameter are fitted, the interval for the first repetitive inspection required by paragraph (h) of this AD is extended to 22,000 landings, provided that Modification No. 5815 is accomplished prior to the accumulation of 16,700 total landings on the flap beam. Following accomplishment of the first repetitive inspection required by paragraph (h) of this AD, subsequent repetitive inspections shall be performed at intervals not to exceed 1,700 landings.

    (ii) If interference fit bolts that are 7/16- or 3/8-inch in diameter are fitted, the interval for the first repetitive inspection required by paragraph (h) of this AD is extended to 33,000 landings, provided that Modification No. 5815 is accomplished prior to the accumulation of 16,700 total landings on the flap beam. Following accomplishment of the first repetitive inspection required by paragraph (h) of this AD, subsequent repetitive inspections shall be performed at intervals not to exceed 1,700 landings.

    (j) Retained Ultrasonic Inspection and Corrective Actions for Model A300-600 Series Airplanes, With Terminating Provisions

    This paragraph restates the requirements of paragraph (d) of AD 95-21-09, with terminating provisions. For Model A300-600 series airplanes: Prior to the accumulation of 15,000 total landings, or within the next 1,000 landings after November 17, 1995 (the effective date of AD 95-21-09), whichever occurs later, perform an ultrasonic inspection to detect cracking of the No. 2 flap track beams, in accordance with Airbus Service Bulletin A300-57-6005, Revision 2, dated December 16, 1993. Accomplishing the actions required by paragraph (l) of this AD terminates the requirements of this paragraph.

    (1) If no cracking is detected, repeat the ultrasonic inspections thereafter at intervals not to exceed 1,700 landings.

    (2) If any crack is detected beyond the bolt hole and that crack is less than or equal to 4 mm in length: Repeat the ultrasonic inspections thereafter at intervals not to exceed 250 landings.

    (3) If any crack is detected beyond the bolt hole and that crack is greater than 4 mm in length: Prior to further flight, replace the flap beam in accordance with Airbus Service Bulletin A300-57-6005, Revision 2, dated December 16, 1993, and prior to the accumulation of 15,000 landings on the replaced flap beam, perform the ultrasonic inspection required by paragraph (j) of this AD.

    (k) Retained Optional Action With Note 5 of AD 95-21-09 Incorporated and Changes To Terminating Action

    This paragraph restates the provisions of paragraph (e) of AD 95-21-09, with Note 5 of AD 95-21-09 incorporated and changes to terminating action. For Model A300-600 series airplanes: Installation of oversized transition fit bolts in cold-worked holes, in accordance with Airbus Service Bulletin A300-57-6006, Revision 4, dated July 25, 1994 (Modification No. 5815), constitutes terminating action for the repetitive inspection requirements of paragraph (j) of this AD, provided that no cracking is detected during any inspection required by paragraph (j) of this AD, and provided that the installation is accomplished prior to the accumulation of 15,000 total landings and before the effective date of this AD. If any bolt requires oversizing above 7/16-inch diameter during accomplishment of this installation, prior to further flight, repair using a method approved by the Manager, Standardization Branch, ANM-113, FAA, Transport Airplane Directorate; or by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA. As of the effective date of this AD, any new repair approval must be done using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA. If Airbus Service Bulletin A300-57-6005, Revision 2, dated December 16, 1993, was accomplished concurrently with Airbus Service Bulletin A300-57-6006, Revision 3, dated December 16, 1993 (Modification No. 5815), the ultrasonic inspection for cracking required by paragraph (j) of this AD need not be performed since the eddy current inspection detailed for Modification No. 5815 is more comprehensive.

    (l) New Requirement of This AD: Initial and Repetitive Ultrasonic Inspections

    At the applicable time specified in paragraph (l)(1) or (l)(2) of this AD and, thereafter at intervals not to exceed those defined in table 3 to paragraph (l) of this AD, as applicable, accomplish an ultrasonic inspection for cracking of the steel base member and the aluminum side members' flap beam on the left-hand (LH) and right-hand (RH) sides, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A300-57-0116, Revision 07, dated September 19, 2011, including Appendixes A and B; or Airbus Service Bulletin A300-57-6005, Revision 06, dated November 14, 2013; as applicable. For the purposes of this AD, average flight time (AFT) must be established as specified in paragraph (m) of this AD. Doing the actions required by this paragraph terminates the requirements of paragraphs (g) through (k) of this AD.

    (1) For Model A300 B2-1A, B2-1C, B2K-3C, B2-203, B4-2C, B4-103, and B4-203 airplanes (referred to as Model A300 series airplanes): Within the applicable compliance time defined in table 1 to paragraph (l) of this AD.

    (2) For Model A300 B4-601, B4-603, B4-620, B4-622, B4-605R, B4-622R, F4-605R, F4-622R airplanes, and Model A300 C4-605R Variant F airplanes (referred to as Model A300-600 series airplanes): At the later of the times specified in paragraphs (l)(2)(i) and (l)(2)(ii) of this AD.

    (i) Within the compliance time defined in table 2 to paragraph (l) of this AD.

    (ii) Within 300 flight cycles or 640 flight hours after the effective date of this AD, whichever occurs first.

    Table 1 to Paragraph (l) of This AD—Inspection Compliance Times for Model A300 Series Airplanes Airplane configuration Compliance times for airplanes with an AFT of less than 1.5 Compliance times for airplanes with an AFT of more than or equal to 1.5 Model A300 B2-1A, B2-1C, B2K-3C, B2-203 airplanes on which Airbus Modifications 4740 and 5815 have not been embodied Within 15,000 flight cycles or 16,900 flight hours since first flight of the airplane, whichever occurs first Within 15,000 flight cycles or 16,900 flight hours since first flight of the airplane, whichever occurs first. Model A300 B4-103 airplanes on which Airbus Modifications 4740 and 5815 have not been embodied Within 15,000 flight cycles or 20,500 flight hours since first flight of the airplane, whichever occurs first Within 15,000 flight cycles or 20,500 flight hours since first flight of the airplane, whichever occurs first. Model A300 B4-2C, and B4-203 airplanes on which Airbus Modifications 4740 and 5815 have not been embodied Within 16,200 flight cycles or 22,200 flight hours since first flight of the airplane, whichever occurs first Within 15,000 flight cycles or 34,000 flight hours since first flight of the airplane, whichever occurs first. Model A300 B2-1A, B2-1C, B2K-3C, B2-203 airplanes on which Airbus Modification 4740 has been embodied Within 12,000 flight cycles or 13,500 flight hours since embodiment of Airbus Modification 4740, whichever occurs first Within 12,000 flight cycles or 13,500 flight hours since embodiment of Airbus Modification 4740, whichever occurs first. Model A300 B4-103 airplanes on which Airbus Modification 4740 has been embodied Within 12,000 flight cycles or 16,400 flight hours since embodiment of Airbus Modification 4740, whichever occurs first Within 12,000 flight cycles or 16,400 flight hours since embodiment of Airbus Modification 4740, whichever occurs first. Model A300 B4-2C, and B4-203 airplanes on which Airbus Modification 4740 has been embodied Within 12,900 flight cycles or 17,700 flight hours since embodiment of Airbus Modification 4740, whichever occurs first Within 12,000 flight cycles or 27,200 flight hours since embodiment of Airbus Modification 4740, whichever occurs first. Model A300 B2-1A, B2-1C, B2K-3C, B2-203 airplanes on which Airbus Modification 5815 has been embodied and no bolt larger than 7/16-inch diameter is fitted Within 33,000 flight cycles or 37,200 flight hours since embodiment of Airbus Modification 5815, whichever occurs first Within 33,000 flight cycles or 37,200 flight hours since embodiment of Airbus Modification 5815, whichever occurs first. Model A300 B4-103 airplanes on which Airbus Modification 5815 has been embodied and no bolt larger than 7/16-inch diameter is fitted Within 33,000 flight cycles or 45,200 flight hours since embodiment of Airbus Modification 5815, whichever occurs first Within 33,000 flight cycles or 45,200 flight hours since embodiment of Airbus Modification 5815, whichever occurs first. Model A300 B4-2C, and B4-203 airplanes on which Airbus Modification 5815 has been embodied and no bolt larger than 7/16-inch diameter is fitted Within 35,600 flight cycles or 48,800 flight hours since embodiment of Airbus Modification 5815, whichever occurs first Within 33,000 flight cycles or 74,900 flight hours since embodiment of Airbus Modification 5815, whichever occurs first. Model A300 B2-1A, B2-1C, B2K-3C, B2-203 airplanes on which Airbus Modification 5815 has been embodied and at least one bolt with a 15/32-inch diameter is fitted Within 22,000 flight cycles or 24,800 flight hours since embodiment of Airbus Modification 5815, whichever occurs first Within 22,000 flight cycles or 24,800 flight hours since embodiment of Airbus Modification 5815, whichever occurs first. Model A300 B4-103 airplanes on which Airbus Modification 5815 has been embodied and at least one bolt with a 15/32-inch diameter is fitted Within 22,000 flight cycles or 30,100 flight hours since embodiment of Airbus Modification 5815, whichever occurs first Within 22,000 flight cycles or 30,100 flight hours since embodiment of Airbus Modification 5815, whichever occurs first. Model A300 B4-2C, and B4-203, airplanes on which Airbus Modification 5815 has been embodied and at least one bolt with a 15/32-inch diameter is fitted Within 23,700 flight cycles or 32,500 flight hours since embodiment of Airbus Modification 5815, whichever occurs first Within 22,000 flight cycles or 49,900 flight hours since embodiment of Airbus Modification 5815, whichever occurs first. Table 2 to Paragraph (1) of This AD—Compliance Times for Model A300-600 Series Airplanes Airplane configuration Compliance times for airplanes with an AFT of less than 1.5 Compliance times for airplanes with an AFT of more than or equal to 1.5 Model A300-600 series airplanes on which Airbus Modification 5815 and Airbus Modification 11133 have not been embodied Within 16,200 flight cycles or 24,300 flight hours since first flight of the airplane, whichever occurs first Within 15,000 flight cycles or 32,400 flight hours since first flight of the airplane, whichever occurs first. Model A300-600 series airplanes on which Airbus Modification 5815 has been embodied and no bolt larger than 7/16-inch diameter is fitted Within 35,600 flight cycles or 53,400 flight hours since embodiment of Airbus Modification 5815, whichever occurs first Within 33,000 flight cycles or 71,200 flight hours since embodiment of Airbus Modification 5815, whichever occurs first. Model A300-600 series airplanes on which Airbus Modification 5815 has been embodied and at least one bolt 15/32-inch diameter is fitted Within 23,700 flight cycles or 35,600 flight hours since embodiment of Airbus Modification 5815, whichever occurs first Within 22,000 flight cycles or 47,500 flight hours since embodiment of Airbus Modification 5815, whichever occurs first. Model A300-600 series airplanes on which Airbus Modification 11133 has been embodied Within 35,600 flight cycles or 53,400 flight hours since first flight, whichever occurs first Within 33,000 flight cycles or 71,200 flight hours since first flight, whichever occurs first. Table 3 to Paragraph (1) of This AD—Repetitive Inspection Intervals Airplane models Repetitive interval (not to exceed) for airplanes with an AFT of less than 1.5 Repetitive interval (not to exceed) for airplanes with an AFT equal to or more than 1.5 A300 B2-1A, B2-1C, B2K-3C, B2-203 1,500 flight cycles or 1,600 flight hours, whichever occurs first 1,500 flight cycles or 1,600 flight hours, whichever occurs first. A300 B4-103 airplanes 1,500 flight cycles or 2,000 flight hours, whichever occurs first 1,500 flight cycles or 2,000 flight hours, whichever occurs first. A300 B4-2C, and B4-203 1,600 flight cycles or 2,200 flight hours, whichever occurs first 1,500 flight cycles or 3,400 flight hours, whichever occurs first. A300-600 series airplanes 1,600 flight cycles or 2,400 flight hours, whichever occurs first 1,500 flight cycles or 3,200 flight hours, whichever occurs first. (m) Calculating the AFT

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

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

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

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

    (n) New Requirement of This AD: Corrective Action

    If any crack is found during any inspection required by paragraph (l) of this AD: Before further flight, replace the flap beam using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA). Replacement of the flap beam does not constitute terminating action for the inspections required by paragraph (l) of this AD.

    (o) Credit for Previous Actions

    (1) This paragraph provides credit for inspections required by paragraph (g) of this AD, if those inspections were performed before November 17, 1995 (the effective date of AD 95-21-09) using Airbus Service Bulletin A300-57-116, Revision 1, dated August 27, 1983; Revision 2, dated April 24, 1984; Revision 3, dated July 20, 1984; Revision 4, dated August 13, 1986; or Revision 5, dated July 10, 1989; as applicable.

    (2) This paragraph provides credit for actions required by paragraph (l) of this AD, if those actions were performed before the effective date of this AD using the applicable service information identified in paragraphs (o)(2)(i) through (o)(2)(x) of this AD.

    (i) Airbus Service Bulletin A300-57-6005, Revision 2, dated December 16, 1993, which was previously incorporated by reference on November 17, 1995 (60 FR 53847, October 18, 1995).

    (ii) Airbus Service Bulletin A300-57-6005, Revision 03, dated November 25, 1997.

    (iii) Airbus Service Bulletin A300-57-6005, Revision 04, dated October 25, 1999.

    (iv) Airbus Service Bulletin A300-57-6005, Revision 05, dated April 25, 2013.

    (v) Airbus Service Bulletin A300-57-116, Revision 1, dated August 27, 1983.

    (vi) Airbus Service Bulletin A300-57-116, Revision 2, dated April 24, 1984.

    (vii) Airbus Service Bulletin A300-57-116, Revision 3, dated July 20, 1984.

    (viii) Airbus Service Bulletin A300-57-116, Revision 4, dated August 13, 1986.

    (ix) Airbus Service Bulletin A300-57-116, Revision 5, dated July 10, 1989.

    (x) Airbus Service Bulletin A300-57-116, Revision 6, dated July 16, 1993, which was previously incorporated by reference on November 17, 1995 (60 FR 53847, October 18, 1995).

    (p) Other FAA AD Provisions

    The following provisions also apply to this AD:

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

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

    (ii) AMOCs approved previously for AD 95-21-09, are approved as AMOCs for the corresponding provisions of paragraphs (g) through (j) of this AD.

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

    (3) Required for Compliance (RC): Except as required by paragraph (n) of this AD: If any service information contains procedures or tests that are identified as RC, those procedures and tests must be done to comply with this AD; any procedures or tests that are not identified as RC are recommended. Those procedures and tests that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the procedures and tests identified as RC can be done and the airplane can be put back in an airworthy condition. Any substitutions or changes to procedures or tests identified as RC require approval of an AMOC.

    (q) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2013-0234R2, dated October 7, 2013, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-8470.

    (2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (r)(5) and (r)(6) of this AD.

    (r) Material Incorporated by Reference

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

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

    (3) The following service information was approved for IBR on November 22, 2016.

    (i) Airbus Service Bulletin A300-57-0116, Revision 07, dated September 19, 2011, including Appendixes A and B. Only the first page of Appendixes A and B of this document are identified as appendixes.

    (ii) Airbus Service Bulletin A300-57-6005, Revision 06, dated November 14, 2013.

    (4) The following service information was approved for IBR on November 17, 1995 (60 FR 53847, October 18, 1995).

    (i) Airbus Service Bulletin A300-57-116, Revision 6, dated July 16, 1993, which contains the following effective pages: Pages 1 through 11 of this document are identified as Revision 6, dated July 16, 1993.

    (ii) Airbus Service Bulletin A300-57-128, Revision 3, dated January 26, 1990, which contains the following effective pages: Page 1 is identified as Revision 3, dated January 26, 1990; pages 2 through 5 are identified as Revision 1, dated February 7, 1986; and pages 6 through 14 are identified as the original issue, dated August 27, 1983.

    (iii) Airbus Service Bulletin A300-57-141, Revision 7, dated July 16, 1993, which contains the following effective pages: Pages 1 through 24 of this document are identified as Revision 7, dated July 16, 1993.

    (iv) Airbus Service Bulletin A300-57-6005, Revision 2, dated December 16, 1993, which contains the following effective pages: Pages 1 through 4 are identified as Revision 2, dated December 16, 1993; pages 5 through 7 and 9 are identified as Revision 1, dated February 26, 1993; and page 8 is identified as the original issue, dated August 13, 1986.

    (v) Airbus Service Bulletin A300-57-6006, Revision 4, dated July 25, 1994, which contains the following effective pages: Pages 1, 2, 5, and 7 are identified as Revision 4, dated July 25, 1994; and pages 3, 4, 6, and 8 through 20 are identified as Revision 3, dated December 16, 1993.

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

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

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

    Issued in Renton, Washington, on September 19, 2016. Dionne Palermo, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-23261 Filed 10-17-16; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-8132; Directorate Identifier 2015-NM-127-AD; Amendment 39-18663; AD 2016-19-14] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain Airbus Model A318 and A319 series airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321 series airplanes. This AD was prompted by a report of cracks found during maintenance inspections on certain lugs of the 10VU rack side fittings in the cockpit. This AD requires repetitive inspections for cracking of the lugs on the 10VU rack side fittings, and repair of any cracking. We are issuing this AD to prevent reading difficulties of flight-critical information displayed to the flightcrew during a critical phase of flight, such as an approach or takeoff, which could result in loss of airplane control at an altitude insufficient for recovery.

    DATES:

    This AD is effective November 22, 2016.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 22, 2016.

    ADDRESSES:

    For service information identified in this final rule, contact Airbus, Airworthiness Office—EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 44 51; email [email protected]; Internet http://www.airbus.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-8132.

    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-2015-8132; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1405; fax 425-227-1149.

    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 Airbus Model A318, A319, A320, and A321 series airplanes. The NPRM published in the Federal Register on December 31, 2015 (80 FR 81792) (“the NPRM”). The NPRM was prompted by a report of cracks found during maintenance inspections on certain lugs of the 10VU rack side fittings in the cockpit. The NPRM proposed to require repetitive inspections for cracking of the lugs on the 10VU rack side fittings, and repair of any cracking. We are issuing this AD to prevent reading difficulties of flight-critical information displayed to the flightcrew during a critical phase of flight, such as an approach or takeoff, which could result in loss of airplane control at an altitude insufficient for recovery.

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2015-0170, dated August 18, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A318 and A319 series airplanes; Model A320-211, -212, -214, -231, -232, and -233 airplanes; and Model A321 series airplanes. The MCAI states:

    During an unscheduled maintenance operation on an A330 aeroplane, the 10VU rack was removed for access and cracks were discovered on 10VU rack side fittings on lugs 1, 3, and 4. As a similar design is installed on A320 family aeroplanes, a sampling review was done to determine the possible fleet impact. The result showed that several aeroplanes had cracked or broken 10VU rack side fittings.

    This condition, if not detected and corrected, could lead to a high vibration level on the primary flight- and navigation displays during critical flight phases (takeoff and landing), possibly creating reading difficulties for the crew.

    Prompted by these findings, Airbus developed mod 35869 to reinforce the affected rack fitting lugs. For in-service aeroplanes, Airbus published Service Bulletin (SB) A320-92-1087 to provide inspection and repair instructions.

    For the reasons described above, this [EASA] AD requires repetitive detailed inspections (DET) of the affected 10VU rack fitting lugs and, depending on findings, accomplishment of a repair.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-8132. 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 Clarify the Description of the Unsafe Condition

    Airbus asked that we revise the unsafe condition by stating that the NPRM is intended to prevent “reading difficulties of flight-critical information,” and not “loss of flight-critical information.” Airbus stated that this clarification would correspond with the language specified in EASA AD 2015-0170, dated August 18, 2015.

    We agree with the commenter's request, for the reason provided. We have clarified the unsafe condition in the SUMMARY and SUPPLEMENTARY INFORMATION Discussion sections in the preamble of this final rule and in paragraph (e) of the AD.

    Request To Extend Compliance Time

    Delta Airlines (DAL) asked that the compliance time specified in the NPRM be extended from 24 to 36 months. DAL stated that the subject cracking issue has been known for over five years; however, the FAA just recently took regulatory action. DAL added that there have been no in-service reports of issues related to safety of flight due to the cracking condition. DAL noted that the unsafe condition of vibration during a critical phase of flight is theoretical and not based on actual testing or experience. In light of this, DAL stated that the 24-month time limit is unwarranted, and should be extended to 36 months to allow more time so the inspection can be accomplished during a hangar visit.

    We do not agree with the commenter's request. In developing an appropriate compliance time for the actions specified in this AD, we considered the safety implications and normal maintenance schedules for the timely accomplishment of the specified actions. We have determined that the proposed 24-month compliance time will ensure an acceptable level of safety and allow the actions to be done during scheduled maintenance intervals for most affected operators. However, affected operators may request an alternative method of compliance (AMOC) for an extension of the compliance time under the provisions of paragraph (i)(1) of this AD by submitting data and analysis substantiating that the change would provide an acceptable level of safety. We have not changed this AD in this regard.

    Request To Remove Reporting Requirement

    DAL asked that the proposed mandatory reporting requirement in paragraph (h) of the proposed AD be removed. DAL understands that Airbus wants to gather necessary in-service information; however, the airworthiness of the airplane does not depend on mandatory reporting. DAL stated that the airplane would be airworthy and public safety would be maintained without the mandatory reporting requirement. DAL added that requiring reporting places an unfair burden on operators of Airbus airplanes compared to operators of airplanes produced by other manufacturers, particularly when there are no findings, because reporting is mandated for the benefit of the original equipment manufacturer. DAL concluded that the reporting should not be mandated through this regulatory action.

    We do not agree with the commenter's request to remove the reporting requirement in paragraph (h) of this AD. We disagree that public safety would be maintained without the mandatory reporting requirement. Reporting is necessary for the airframe manufacturer to determine the extent of the cracking of the lugs on the 10VU rack side fittings, and to ascertain any necessary follow-up actions. Therefore, we have not changed this AD in this regard.

    Request To Clarify Reporting Requirements

    DAL asked for clarification of the format necessary to report the inspection results specified in paragraph (h) of the proposed AD. DAL asked if the reporting form located in the back of Airbus Service Bulletin A320-92-1087, Revision 02, dated November 25, 2014, must be used or if the report can be submitted using another format.

    While we recommend that operators use the form in Figure A-FRAAA—Sheet 02, titled “Inspection Report,” of Airbus Service Bulletin A320-92-1087, Revision 02, dated November 25, 2014, this AD does not require use of that form. We have changed paragraph (h) of this AD to clarify our intent.

    DAL also noted that it disagrees with having to determine and report the supplemental type certificate (STC) status for equipment attached to the 10VU rack, as specified in Figure A-FRAAA—Sheet 02, titled “Inspection Report,” of Airbus Service Bulletin A320-92-1087, Revision 02, dated November 25, 2014. DAL stated that STC equipment should be addressed in a separate regulatory action.

    We agree with the comment. As previously indicated, the referenced form is not specifically required by this AD, and we have changed paragraph (h) of this AD to clarify our intent.

    Request for Clarification on Returning Damaged Parts

    DAL and United Airlines (UAL) asked for clarification on returning damaged parts to Airbus. DAL stated that if the reporting form must be used, it disagrees with sending all damaged parts to Airbus. UAL stated that the NPRM proposes requiring reporting inspection findings to Airbus, and Figure A-FRAAA—Sheet 02, titled “Inspection Report” of Airbus Service Bulletin A320-92-1087, Revision 02, dated November 25, 2014, specifies that damaged lugs are to be sent to Airbus for investigation. UAL noted that it will try to deliver damaged parts, but added that this should not be an AD requirement since parts shipment will increase cost and the operator cannot guarantee delivery.

    We agree that clarification is necessary. Although the note contained in Figure A-FRAAA—Sheet 02, titled “Inspection Report,” of Airbus Service Bulletin A320-92-1087, Revision 02, dated November 25, 2014, specifies “If lugs have been replaced the removed part should be sent to Airbus for investigation,” this AD does not include that requirement. We have included this exception in the reporting requirement in paragraph (h) of this AD.

    Request To Use a Certain Drawing

    UAL asked that we approve using the current version of the Airbus repair drawing, as called out in Airbus Service Bulletin A320-92-1087, Revision 02, dated November 25, 2014. UAL noted that this repair drawing is the latest version and may be revised without revision of Airbus Service Bulletin A320-92-1087, Revision 02, dated November 25, 2014.

    For clarification, we agree that the current version of the repair drawing can be used. We have not changed this AD in this regard.

    Request To Change Costs of Compliance Section

    DAL asked that we change the repair estimate in the `Costs of Compliance' section of the NPRM, as specified in Airbus Service Bulletin A320-92-1087, Revision 02, dated November 25, 2014. DAL stated that the service information does not provide the cost of the parts, and Airbus does have the price of each part listed in the COMPA01 components. DAL added that the parts cost is $9,140 per airplane to accomplish the repair work. DAL asked that this cost be included in the cost of the repair, for a total of $16,280 per airplane.

    We agree with the commenter's request, for the reason provided. We have changed the repair estimate in the `Costs of Compliance' section of this final rule accordingly.

    Conclusion

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

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

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

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

    Related Service Information Under 1 CFR part 51

    We reviewed Airbus Service Bulletin A320-92-1087, Revision 02, dated November 25, 2014. The service information describes procedures for repetitive inspections for cracking of the lugs on the 10VU rack side fittings, and repair of any cracking. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 959 airplanes of U.S. registry.

    We also estimate that it takes about 2 work-hours per product to comply with the basic requirements of this AD, and 1 work-hour per product to report inspection findings. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of this AD on U.S. operators to be $244,545, or $255 per product.

    In addition, we estimate that any necessary repair takes about 84 work-hours and require parts costing $9,140, for a cost of $16,280 per product. We have no way of determining the number of aircraft that might need these actions.

    Paperwork Reduction Act

    A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW., Washington, DC 20591, ATTN: Information Collection Clearance Officer, AES-200.

    Authority for This Rulemaking

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

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

    Regulatory Findings

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

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

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2016-19-14 Airbus: Amendment 39-18663; Docket No. FAA-2015-8132; Directorate Identifier 2015-NM-127-AD. (a) Effective Date

    This AD is effective November 22, 2016.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to the Airbus airplanes identified in paragraphs (c)(1) through (c)(4) of this AD, certificated in any category; except airplanes on which Airbus Modification 35869 has been embodied in production.

    (1) Airbus Model A318-111, -112, -121, and -122 airplanes.

    (2) Airbus Model A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes.

    (3) Airbus Model A320-211, -212, -214, -231, -232, and -233 airplanes.

    (4) Airbus Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes.

    (d) Subject

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

    (e) Reason

    This AD was prompted by a report of cracks found during maintenance inspections on certain lugs of the 10VU rack side fittings in the cockpit. We are issuing this AD to prevent reading difficulties of flight-critical information displayed to the flightcrew during a critical phase of flight, such as an approach or takeoff, which could result in loss of airplane control at an altitude insufficient for recovery.

    (f) Compliance

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

    (g) Repetitive Inspections and Repair

    At the later of the times specified in paragraphs (g)(1) and (g)(2) of this AD: Do a detailed inspection for cracking of the lugs on the 10VU rack side fittings in the cockpit, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-92-1087, Revision 02, dated November 25, 2014. If any crack is found, before further flight, repair in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-92-1087, Revision 02, dated November 25, 2014. Repeat the inspection thereafter at intervals not to exceed 20,000 flight cycles or 40,000 flight hours, whichever occurs first. Repair of the 10VU rack lugs does not terminate the repetitive inspections required by this paragraph.

    (1) Before the accumulation of 30,000 total flight cycles or 60,000 total flight hours, whichever occurs first since the airplane's first flight.

    (2) Within 24 months after the effective date of this AD.

    (h) Reporting Requirement

    Submit a report of any findings (positive and negative) of any inspection required by paragraph (g) of this AD to Airbus Service Bulletin Reporting Online Application on Airbus World (https://w3.airbus.com/), at the applicable time specified in paragraph (h)(1) or (h)(2) of this AD. Where Figure A-FRAAA—Sheet 02, titled “Inspection Report,” of Airbus Service Bulletin A320-92-1087, Revision 02, dated November 25, 2014, specifies sending removed lugs to Airbus for investigation, this AD does not include that requirement. The form contained in Figure A-FRAAA—Sheet 02, titled “Inspection Report,” of Airbus Service Bulletin A320-92-1087, Revision 02, dated November 25, 2014, may be used to meet this reporting requirement.

    (1) If the inspection was done on or after the effective date of this AD: Submit the report within 90 days after the inspection.

    (2) If the inspection was done before the effective date of this AD: Submit the report within 90 days after the effective date of this AD.

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Branch, send it to ATTN: Sanjay Ralhan, Aerospace Engineer, International Branch, ANM-116, Transport Airplane Directorate, FAA, 1601 Lind Avenue SW., Renton, WA 98057-3356; telephone 425-227-1405; fax 425-227-1149. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Branch, ANM-116, Transport Airplane Directorate, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (3) Reporting Requirements: A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at: 800 Independence Ave. SW., Washington, DC 20591, Attn: Information Collection Clearance Officer, AES-200.

    (4) Required for Compliance (RC): If any service information contains procedures or tests that are identified as RC, those procedures and tests must be done to comply with this AD; any procedures or tests that are not identified as RC are recommended. Those procedures and tests that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the procedures and tests identified as RC can be done and the airplane can be put back in an airworthy condition. Any substitutions or changes to procedures or tests identified as RC require approval of an AMOC.

    (j) Related Information

    Refer to Mandatory Continuing Airworthiness Information (MCAI) European Aviation Safety Agency (EASA) Airworthiness Directive 2015-0170, dated August 18, 2015, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-8132.

    (k) Material Incorporated by Reference

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

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

    (i) Airbus Service Bulletin A320-92-1087, Revision 02, dated November 25, 2014.

    (ii) Reserved.

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

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

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

    Issued in Renton, Washington, on September 14, 2016. Michael Kaszycki, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2016-22837 Filed 10-17-16; 8:45 am] BILLING CODE 4910-13-P
    COMMODITY FUTURES TRADING COMMISSION 17 CFR Part 1 Order Establishing De Minimis Threshold Phase-In Termination Date AGENCY:

    Commodity Futures Trading Commission.

    ACTION:

    Order.

    SUMMARY:

    With respect to the de minimis exception to the swap dealer definition, the Commodity Futures Trading Commission (“Commission” or “CFTC”) is issuing an order (“Order”), pursuant to the applicable Commission regulation, to establish December 31, 2018 as the de minimis threshold phase-in termination date.

    DATES:

    Issued October 13, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Eileen T. Flaherty, Director, 202-418-5326, [email protected]; Erik Remmler, Deputy Director, 202-418-7630, [email protected]; Lauren Bennett, Special Counsel, 202-418-5290, [email protected]; Margo Dey, Special Counsel, 202-418-5276, [email protected]; or Rajal Patel, Special Counsel, 202-418-5261, [email protected], Division of Swap Dealer and Intermediary Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581.

    SUPPLEMENTARY INFORMATION:

    I. Background A. Statutory and Regulatory Background

    The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) 1 directed the CFTC and the U.S. Securities and Exchange Commission (“SEC” and together with the CFTC, “Commissions”) to jointly further define the term “swap dealer” and to include therein a de minimis exception.2 The CFTC's further definition of swap dealer is provided in Regulation 1.3(ggg). The de minimis exception therein provides that a person shall not be deemed to be a swap dealer unless its swap dealing activity exceeds an aggregate gross notional amount threshold of $3 billion (measured over the prior 12-month period), subject to a phase-in period during which the gross notional amount threshold is set at $8 billion.3 Absent further action by the Commission, the phase-in period would terminate on December 31, 2017, at which time the de minimis threshold would decrease to $3 billion.4 This would require firms to start tracking their swap activity beginning January 1, 2017 to determine whether their dealing activity over the course of that year would require them to register as swap dealers.

    1 Public Law 111-203, 124 Stat. 1376 (2010). The text of the Dodd-Frank Act can be accessed on the Commission's Web site, at www.cftc.gov.

    2See Dodd-Frank Act sections 712(d) and 721. The definition of “swap dealer” can be found in section 1a(49) of the Commodity Exchange Act and as further defined in Regulation 1.3(ggg). 7 U.S.C. 1a(49) and 17 CFR 1.3(ggg). The Commodity Exchange Act is at 7 U.S.C. 1, et seq. (2014), and is accessible on the Commission's Web site, at www.cftc.gov.

    3See 17 CFR 1.3(ggg)(4). See also Further Definition of “Swap Dealer,” “Security-Based Swap Dealer,” “Major Swap Participant,” “Major Security-Based Swap Participant” and “Eligible Contract Participant,” 77 FR 30596 (May 23, 2012).

    This Order does not impact the de minimis threshold for swaps with “special entities” as defined in the Commodity Exchange Act, section 4s(h)(2)(C), 7 U.S.C. 6s(h)(2)(C).

    4See 17 CFR 1.3(ggg)(4)(ii)(D).

    When the $3 billion de minimis exception was established, the Commissions explained that the information then available regarding certain portions of the swap market was limited in certain respects, and that they expected that the implementation of swap data reporting may enable reassessment of the de minimis exception.5 Accordingly, the Commission adopted Regulation 1.3(ggg)(4), which directed CFTC staff to issue a report, after a specified period of time, on topics relating to the de minimis exception “as appropriate, based on the availability of data and information.” 6 Regulation 1.3(ggg)(4) further provides that after giving due consideration to the report and any associated public comment, the Commission may issue an order to establish a termination date for the phase-in period or propose through rulemaking modifications to the de minimis exception.

    5See 77 FR at 30634, 30640.

    6 SEC Regulation 240.3a71-2A similarly directs SEC staff to prepare a report on the security-based swap dealer de minimis exception. 17 CFR 240.3a71-2A.

    B. Staff Reports

    Staff issued for public comment a preliminary report concerning the de minimis exception on November 18, 2015 (“Preliminary Report”).7 After consideration of the public comments received, and further data analysis, staff issued the Swap Dealer De Minimis Exception Final Staff Report 8 on August 15, 2016 (“Final Report,” and together with the Preliminary Report, “Staff Reports”). The Staff Reports analyzed the available swap data 9 in conjunction with relevant policy considerations to assess alternative de minimis threshold levels and other potential changes to the de minimis exception.

    7 Swap Dealer De Minimis Exception Preliminary Report (Nov. 18, 2015), available at http://www.cftc.gov/idc/groups/public/@swaps/documents/file/dfreport_sddeminis_1115.pdf.

    8 Swap Dealer De Minimis Exception Final Staff Report (August 15, 2016), available at http://www.cftc.gov/idc/groups/public/@swaps/documents/file/dfreport_sddeminis081516.pdf.

    9 The data analysis broke down the data into the following asset classes: Interest rate swaps (“IRS”); credit default swaps (“CDS”); non-financial commodity (“Non-Financial Commodity”) swaps; equity (“Equity”) swaps; and foreign exchange derivatives (“FX Derivatives”).

    C. Swap Data Analysis

    As discussed in the Staff Reports, the lack of certain metrics needed for evaluating different de minimis thresholds, as well as data validity issues, limited the analysis of the potential impact of changes to the current de minimis exception.10 The Final Report further noted that, notwithstanding these data issues, the quality of the swap data that is reported to the Commission appears to be continually improving, and that the Commission is taking additional steps to enhance swap data quality.11

    10See Preliminary Report at 12-21; Final Report at 4-6, 19-20. For example, the data reported does not indicate whether either counterparty to a swap is acting as a dealer, and there are difficulties in calculating the notional amounts for certain types of swaps in a uniform manner useful for data analysis.

    11See Final Report at 18-19. For example, in June 2016, the Commission finalized amendments related to the reporting of cleared swaps. See Amendments to Swap Data Recordkeeping and Reporting Requirements for Cleared Swaps, 81 FR 41736 (June 27, 2016).

    The data analysis in the Staff Reports provided some insights into the effectiveness of the de minimis exception as currently implemented. Staff analyzed the number of swap transactions involving at least one registered swap dealer, which is indicative of the extent to which swaps are subject to swap dealer regulation at the current $8 billion threshold. Data reviewed for the Final Report indicated that approximately 96% of all reported swap transactions involved at least one registered swap dealer. When considering individual swap asset classes, approximately 98% or more of swaps in each asset class, other than the Non-Financial Commodity asset class, involved at least one registered swap dealer. Approximately 89% of Non-Financial Commodity swaps involved a registered swap dealer.12

    12See Final Report at 22.

    However, as discussed above, the data available was not sufficient to assess whether, and to what extent, specific changes to the de minimis threshold levels would increase or decrease the coverage of swaps by swap dealer regulation. In particular, the Staff Reports noted that reliable notional amount data was not available for Non-Financial Commodity, Equity, and FX Derivative swaps.

    The Commission also notes that it has not yet adopted a regulation on capital requirements for swap dealers, which is a significant component of swap dealer registration. The Commission believes it is prudent to finalize the capital rule before addressing the de minimis threshold. In addition, the swap dealer requirements regarding margin for uncleared swaps, another important component of swap dealer registration, are currently being implemented. The Commission believes that a year's delay would allow it to finalize the swap dealer capital rule and assess the implementation of margin requirements for uncleared swaps. Having information on these aspects associated with swap dealer registration would be helpful in further assessing the impact of changing the de minimis threshold.

    Accordingly, the Commission believes that it is prudent to extend the phase-in period by one year, which may provide additional time for more information to become available to reassess the de minimis exception. Adopting this Order at this time also provides clarity to market participants regarding when they would need to begin preparing for a change to the de minimis exception.

    II. Conclusion and Order

    For the reasons discussed above, and pursuant to its authority under Regulation 1.3(ggg)(4)(ii)(C)(1), the Commission is establishing December 31, 2018 as the termination date for the de minimis threshold phase-in period. The Commission notes that prior to the termination of the phase-in period, the Commission may take further action regarding the de minimis threshold by rule amendment, order, or other appropriate action.13

    13See 17 CFR 1.3(ggg)(4)(v).

    III. Related Matters A. Paperwork Reduction Act

    The Paperwork Reduction Act (“PRA”) 14 imposes certain requirements on Federal agencies in connection with their conducting or sponsoring any collection of information as defined by the PRA. This Order does not impose any new recordkeeping or information collection requirements, or other collections of information that require approval of the Office of Management and Budget under the PRA.

    14 44 U.S.C. 3501 et seq.

    B. Cost-Benefit Considerations

    Section 15(a) of the Commodity Exchange Act (“CEA”) requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA or issuing certain orders.15 Section 15(a) further specifies that the costs and benefits shall be evaluated in light of five broad areas of market and public concern: (i) Protection of market participants and the public; (ii) efficiency, competitiveness, and financial integrity of futures markets; (iii) price discovery; (iv) sound risk management practices; and (v) other public interest considerations. In this section, the Commission considers the costs and benefits resulting from its determinations with respect to the section 15(a) factors.

    15 7 U.S.C. 19(a).

    1. Background

    As discussed above, Regulation 1.3(ggg)(4)(i) provides an exception from the swap dealer definition for persons who engage in a de minimis amount of swap dealing activity. Currently, under Regulation 1.3(ggg)(4)(i), a person shall not be deemed to be a swap dealer unless its swap dealing activity exceeds an aggregate gross notional amount threshold of $3 billion (measured over the prior 12-month period), subject to a phase-in period during which the gross notional amount threshold is set at $8 billion.16 The phase-in period would have terminated on December 31, 2017, and the de minimis threshold would have decreased to $3 billion, absent this Order.17 This would have required firms to start tracking their swap activity beginning January 1, 2017 to determine whether their dealing activity over the course of that year would require them to register as swap dealers.

    16 17 CFR 1.3(ggg)(4)(i). See generally 77 FR at 30626-35. See also note 3, supra.

    17 17 CFR 1.3(ggg)(4).

    The $3 billion threshold, which, absent this Order, would be effective on December 31, 2017, sets the baseline for the Commission's consideration of the costs and benefits of this Order.18 Accordingly, the Commission considers the costs and benefits that will result from an extended phase-in period.

    18See 77 FR at 30702-14 (discussing the cost-benefit considerations with regard to the final swap dealer definition).

    2. General Cost and Benefit Considerations

    There are several policy objectives underlying swap dealer regulation and the de minimis exception to swap dealer registration. The primary policy objectives of swap dealer regulation include the reduction of systemic risk, increased counterparty protections, and market efficiency, orderliness, and transparency.19 Registered swap dealers are subject to a broad range of requirements, including, inter alia, registration, internal and external business conduct standards, reporting, recordkeeping, risk management, posting and collecting margin, and chief compliance officer designation and responsibilities. As noted in the Regulation 1.3(ggg) adopting release, generally, the lower the de minimis threshold, the greater the number of entities that are subject to these requirements, which could decrease systemic risk, increase counterparty protections, and promote swap market efficiency, orderliness, and transparency.20

    19Id. at 30628-30, 30707-08.

    20Id. at 30628-30, 30703, 30707-08.

    The Commission also considers policy objectives furthered by a de minimis exception, which include regulatory certainty, allowing limited ancillary dealing, encouraging new participants to enter the swap dealing market, and regulatory efficiency.21 Generally, the higher the de minimis threshold, the greater the number of entities that are able to engage in dealing activity without being required to register, which could increase competition and liquidity in the swap market.22 In addition, because competitive markets may be more efficient, a higher de minimis threshold might improve swap market efficiency. Further, the Commission notes that it has been suggested that a higher threshold could allow the Commission to expend its resources on entities with larger swap dealing activities warranting more oversight. An alternative view is that the de minimis threshold should be set based on policy independent of consideration of the Commission's resources.

    21Id. at 30628-30, 30707-08.

    22 Alternatively, the Commission notes that a lower de minimis threshold may lead to potential changes in market behavior, including, for example, product innovation.

    Extending the phase-in period by one year will delay realization of the policy benefits associated with the $3 billion de minimis threshold, but will also extend the policy benefits associated with a higher de minimis threshold. The additional time to adjust to the $3 billion de minimis threshold also would potentially increase regulatory certainty for some market participants. Given that the de minimis exception is subject to a 12-month look-back, extending the phase-in period to December 31, 2018 would allow entities that would potentially have to register as swap dealers additional time to adjust their activities and prepare for the compliance obligations related to swap dealer registration.

    3. Section 15(a)

    Section 15(a) of the CEA requires the Commission to consider the effects of its actions in light of the following five factors. This Order will delay the potential costs and benefits discussed below by one year.

    (i) Protection of Market Participants and the Public

    Providing regulatory protections for swap counterparties who may be less experienced or knowledgeable about the swap products offered by swap dealers (particularly end-users who use swaps for hedging or investment purposes) is a fundamental policy goal advanced by the regulation of swap dealers. The Commission recognizes that the $3 billion de minimis threshold may result in more entities being required to register as swap dealers compared to an $8 billion threshold, thereby extending counterparty protections to a greater number of market participants. Further, swap dealer regulation is intended to reduce systemic risk in the swap market. Pursuant to the Dodd-Frank Act, the Commission has proposed or adopted regulations for swap dealers—including margin and risk management requirements—designed to mitigate the potential systemic risk inherent in the swap market. Therefore, the Commission recognizes that a lower de minimis threshold may result in more entities being required to register as swap dealers, thereby potentially further reducing systemic risk.

    (ii) Efficiency, Competitiveness, and Financial Integrity of Markets

    Other goals of swap dealer regulation are swap market transparency, orderliness, and efficiency. These benefits are achieved through regulations requiring, for example, swap dealers to keep trading records and report trades, provide counterparty disclosures about swap risks and pricing, and undertake portfolio reconciliation and compression exercises. Accordingly, the Commission notes that a lower de minimis threshold may have a positive effect on the efficiency and integrity of the markets.

    However, the Commission also recognizes that the efficiency and competitiveness of the swap market may be negatively impacted if the de minimis threshold is set too low by potentially increasing barriers to entry that may stifle competition and reduce swap market efficiency. For example, if entities choose to reduce or cease their swap dealing activities so that they would not need to register if the de minimis threshold decreases to $3 billion, the number or availability of market makers for swaps may be reduced, which could lead to increased costs for potential counterparties and end-users.

    (iii) Price Discovery

    The Commission preliminarily believes that a $3 billion de minimis threshold may discourage participation of new swap dealers and ancillary dealing. If there are fewer entities engaged in dealing, there may be a negative effect on price discovery.

    (iv) Sound Risk Management

    The Commission notes that a $3 billion de minimis threshold could lead to better risk management practices because a greater number of entities would be required by regulation to: (i) Develop and implement detailed risk management programs; (ii) adhere to business conduct standards that reduce operational and other risks; and (iii) satisfy margin requirements for uncleared swaps.

    (v) Other Public Interest Considerations

    The Commission has not identified any other public purpose considerations for this Order.

    C. Antitrust Considerations

    Section 15(b) of the CEA requires the Commission to take into consideration the public interest to be protected by the antitrust laws and endeavor to take the least anticompetitive means of achieving the objectives of the CEA, in issuing any order or adopting any Commission rule or regulation. The Commission does not anticipate that the Order discussed herein will result in anti-competitive behavior.

    IV. Order

    In light of the foregoing, it is ordered, pursuant to the Commission's authority under Regulation 1.3(ggg)(4)(ii)(C)(1), that the de minimis threshold phase-in termination date shall be December 31, 2018. Absent further action by the Commission, the phase-in period would terminate on December 31, 2018, at which time the de minimis threshold will be $3 billion.

    The Commission retains the authority to condition further, modify, suspend, terminate, or otherwise restrict any of the terms of the Order provided herein, in its discretion.

    Issued in Washington, DC, on October 13, 2016, by the Commission. Christopher J. Kirkpatrick, Secretary of the Commission. Appendices To Order Establishing De Minimis Threshold Phase-In Termination Date Pursuant to Commission Regulation 1.3(ggg)(4)(ii)(C)(1)—Commission Voting Summary, Chairman's Statement, and Commissioner's Statement Appendix 1—Commission Voting Summary

    On this matter, Chairman Massad and Commissioners Bowen and Giancarlo voted in the affirmative. No Commissioner voted in the negative.

    Appendix 2—Statement of Chairman Timothy G. Massad

    I thank my fellow Commissioners for unanimously supporting this order, which extends the phase-in of the de minimis threshold for swap dealing by one year.

    The de minimis threshold determines when an entity's swap dealing activity requires registration with the CFTC. Registration triggers capital and margin requirements as well as other responsibilities, such as disclosure, recordkeeping, and documentation requirements. In 2012, the CFTC set the threshold initially at $8 billion in notional amount of swap dealing activity over the course of a year, and provided that it would fall to $3 billion at the end of 2017.

    This registration requirement is a pillar of the framework for swap regulation mandated by the Dodd-Frank Act. Congress required this framework because excessive risk related to over-the-counter derivatives contributed to the intensity of the worst financial crisis since the Great Depression, one which resulted in millions of American families losing their jobs, their homes and their savings. At the same time, Congress recognized that derivatives play an important role in enabling businesses to hedge risk. Therefore, getting this framework right is very important.

    There are now more than 100 swap dealers provisionally registered with the CFTC, which include most of the largest global banking entities. Absent our action today, the threshold would have dropped from $8 billion to $3 billion at the end of 2017. That means firms would have been required to start determining whether their activity exceeds that lower threshold just a few months from now—in January of next year. Pushing back this date is a sensible and responsible step for several reasons.

    First, our staff has completed the study required by the rule on the threshold. They estimated that lowering the threshold would not increase significantly the percentage of interest rate swaps (IRS) and credit default swaps (CDS) covered by swap dealer regulation, but it would require many additional firms to register. This might include some smaller banks whose swap activity is related to their commercial lending business. At the same time, the study notes that the data has certain shortcomings, particularly when it comes to nonfinancial commodity swaps. This market is very different than the IRS and CDS markets, and I know there is much concern about the threshold with respect to it. This delay will allow us to consider all these issues further.

    In addition, I believe it makes sense to adopt a rule setting capital requirements for swap dealers before addressing the threshold. This rule, which is required by Dodd-Frank, is one of the most important in our regulation of swap dealers, and I am hoping the Commission can act on a reproposal of it soon. This one-year delay will also allow us to more fully assess how the new margin requirements are working.

    These are just some of the reasons we have taken this action. I thank the CFTC staff for their hard work on this order and on this issue generally. And I again thank my fellow Commissioners for their support.

    Appendix 3—Concurring Statement of Commissioner Sharon Y. Bowen

    While we might disagree on the details of today's order, I think we can all agree on one thing: Today's action is very important to how the swaps industry operates and our system of financial regulation functions. If we do not accurately and appropriately set the mandatory level of trading for swap dealer registration, our entire regulatory regime for the swaps market will be weakened.

    I know that a great deal has been said about the subject of the de minimis threshold, and I expect that just about everyone reviewing today's decision to extend the current phase-in of the $3 billion threshold by one year is all-too familiar with its substance. Yet, given the amount of prior actions that the Commission has taken on this topic, I think we cannot fully consider how to view today's action without first reviewing how we got here. Following the 2008 financial crisis, which was exacerbated by the absence of regulation of the swaps market, Congress passed the Dodd-Frank Wall Street Reform and Consumer Protection Act. Among the many things in that Act were a raft of robust regulatory requirements on the swaps market, including mandatory clearing, a system of data reporting, and a mandate to trade many products on Swap Execution Facilities (SEFs).

    Some of the most significant new regulatory requirements were crafted for what we now call swap dealers, those entities which had significant involvement in the swaps market.1 For instance, along with major swap participants, swap dealers were at the heart of our new regulation regarding margin for uncleared swaps and the related cross-border rulemaking. Swap dealers will similarly be substantially impacted by our upcoming rule proposal on capital.

    1See Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank), section 721(49)(A), available at: http://www.cftc.gov/idc/groups/public/@swaps/documents/file/hr4173_enrolledbill.pdf. That provision states that the term “swap dealer” means any person who holds itself out as a dealer in swaps; makes a market in swaps; regularly enters into swaps with counterparties as an ordinary course of business for its own account; or engages in any activity causing the person to be commonly known in the trade as a dealer or market maker in swaps, with the proviso that, in no event shall an insured depository institution be considered to be a swap dealer to the extent it offers to enter into a swap with a customer in connection with originating a loan with that customer.

    Who has to register as a swap dealer is therefore one of the linchpins of the entire swaps regulatory regime. If the level of swap dealing activity is not sufficient to capture entities that should be registered as swap dealers, then many of our other rules, including margin and capital, will not apply to these entities, and the markets may not be adequately protected. On the other hand, if the level of swap dealing activity is too low, many entities, that do not pose a meaningful risk to the financial system, will be required to register as swap dealers, thereby unnecessarily burdening markets.

    It was with this concern in mind that Congress required that we create a threshold for swap dealer registration. Dodd-Frank requires that the Commission shall exempt from designation as a swap dealer an entity that engages in a de minimis quantity of swap dealing in connection with transactions with or on behalf of its customers. The Commission shall promulgate regulations to establish factors with respect to the making of this determination to exempt.2 We are thus required to give entities an exemption from swap dealer registration if the quantity of their swap transactions falls below a certain level.

    2 Dodd-Frank section 721(49)(D).

    As required, the Commission set that level in 2012. As part of a rulemaking released in May 2012, the Commission set the level of the de minimis exemption at $3 billion, with a temporary phase-in level of $8 billion during the first few years.3 The Commission also agreed to release a report within the next few years as more data from the various industry participants involved in the swaps market was reported to the CFTC.4 The Commission further committed, once nine months had passed after the report was published “and after giving due consideration to the report and any associated public comment,” to give itself three options for how to deal with the threshold.5 First, we could terminate the phase-in period and have the threshold immediately drop to $3 billion. Second, if we decided it was “necessary or appropriate in the public interest” to propose a new threshold limit, we could do so via our typical rulemaking authority.6 Third, if we failed to pursue either the first or second options before a date certain—December 31, 2017, the phase-in period would automatically and immediately end, and the threshold would simply be $3 billion.7

    3See Further Definition of “Swap Dealer,” “Security-Based Swap Dealer,” “Major Swap Participant,” “Major Security-Based Swap Participant,” and “Eligible Contract Participant,” 77 FR 30596 (May 23, 2012), available at: http://www.cftc.gov/idc/groups/public/@lrfederalregister/documents/file/2012-10562a.pdf.

    4Id. at 30756.

    5Id.

    6Id.

    7Id.

    We have now published our final staff report on the de minimis threshold and the nine month period of considering whether to change the threshold has formally begun. I am grateful for the staff for all their hard work and appreciate that it has not been an easy undertaking. I am also grateful to market participants and the public for the comments and opinions that they have provided on the first and final drafts of the report. That said, it is clear from the report that our staff does not have sufficient data to make a fully informed decision.

    Today, the Commission is augmenting our efforts to get better data on this issue by extending the phase-in period of the threshold by one year. Because of the Commission's action, the threshold will continue to be at $8 billion until December 31, 2018. At that point, absent additional action by the Commission, the phase-in period will end and the threshold will be $3 billion.

    I support this initiative to get additional data on this subject, and I do not support changing the threshold at this time. But I wish to make something clear: We need to see hard data backing up the opinions we will receive during this delay about why we should not just allow the threshold to be $3 billion as established in the rule. I know that there is a great deal of disagreement about this issue, and I do not think we will be able to reach a consensus unless we have real economic analysis and evidence to back up people's comments. If you believe the threshold should be changed to $8 billion, or some other amount, because of market conditions, please, provide us with supporting data. Or, if you believe that the threshold should be even lower, as low as the $150 million threshold that was once contemplated, please provide us with supporting data. If we stay focused on hard, economic analysis and an objective view about the state of the market, the final determination of the threshold will be more understandable and transparent. Given the years of existing discussion and analysis and the established process the Commission has created, we would do both a disservice to the industry and to the public to change the threshold now absent strong evidence for doing so.

    I am sympathetic to the concerns that there may be onerous impacts on the market just because of this threshold. We know that cleared swaps are safer than uncleared swaps, which is why we have tried to encourage increased clearing of swaps. As such, I think there is some merit to modifying the threshold in the future by exempting cleared swaps from being counted in calculations of whether a firm is above it. If market participants or observers have strong thoughts on this idea or other ways that we might help make the $3 billion threshold less arduous, I encourage you to reach out to my office and my staff.

    I believe we should receive empirical data that can justify where the threshold number needs to be. I therefore expect that, near the start of 2017, we will start to collect additional data from market participants regarding those portions of the swaps market for which we still lack full and detailed information. Absent that, I will have no basis from which to change the phase-in or move the threshold to something other than $3 billion.

    [FR Doc. 2016-25143 Filed 10-17-16; 8:45 am] BILLING CODE 6351-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 890 [Docket No. FDA-2016-N-2829] Medical Devices; Physical Medicine Devices; Classification of the Upper Extremity Prosthesis Including a Simultaneously Powered Elbow and/or Shoulder With Greater Than Two Simultaneous Powered Degrees of Freedom and Controlled by Non-Implanted Electrical Components AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final order.

    SUMMARY:

    The Food and Drug Administration (FDA) is classifying the Upper Extremity Prosthesis Including a Simultaneously Powered Elbow and/or Shoulder with Greater Than Two Simultaneous Powered Degrees of Freedom and Controlled by Non-Implanted Electrical Components into class II (special controls). The special controls that will apply to the device are identified in this order and will be part of the codified language for the upper extremity prosthesis including a simultaneously powered elbow and/or shoulder with greater than two simultaneous powered degrees of freedom and controlled by non-implanted electrical components' classification. The Agency is classifying the device into class II (special controls) in order to provide a reasonable assurance of safety and effectiveness of the device.

    DATES:

    This order is effective October 18, 2016. The classification was applicable on May 9, 2014.

    FOR FURTHER INFORMATION CONTACT:

    Michael Hoffmann, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 2640, Silver Spring, MD, 20993-0002, 301-796-6476, [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, 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) of the FD&C Act. 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. In accordance with section 513(f)(1) of the FD&C Act, FDA issued an order on May 18, 2012, classifying the DEKA Arm System into class III, because it was not substantially equivalent to a device that was introduced or delivered for introduction into interstate commerce for commercial distribution before May 28, 1976, or a device which was subsequently reclassified into class I or class II.

    On June 15, 2012, DEKA Integrated Solutions Corporation submitted a request for classification of the DEKA Arm 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 II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls to provide reasonable assurance of the safety and effectiveness of the device for its intended use. After review of the information submitted in the request, FDA determined that the device can be classified into class II with the establishment of special controls. FDA believes these special controls, in addition to general controls, will provide reasonable assurance of the safety and effectiveness of the device.

    Therefore, on May 9, 2014, FDA issued an order to the requestor classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 890.3450.

    Following the effective date of this final classification order, any firm submitting a premarket notification (510(k)) for an upper extremity prosthesis including a simultaneously powered elbow and/or shoulder with greater than two simultaneous powered degrees of freedom and controlled by non-implanted electrical components will need to comply with the special controls named in this final order. The device is assigned the generic name upper extremity prosthesis including a simultaneously powered elbow and/or shoulder with greater than two simultaneous powered degrees of freedom and controlled by non-implanted electrical components, and it is identified as a prescription device intended for medical purposes, and intended to replace a partially or fully amputated or congenitally absent upper extremity. It uses electronic inputs (other than simple, manually controlled electrical components such as switches) to provide greater than two independent and simultaneously powered degrees of freedom and includes a simultaneously powered elbow and/or shoulder. Prosthetic arm components that are intended to be used as a system with other arm components must include all degrees of freedom of the total upper extremity prosthesis system.

    FDA has identified the following risks to health associated specifically with this type of device, as well as the mitigation measures required to mitigate these risks in table 1.

    Table 1—Upper Extremity Prosthesis Including a Simultaneously Powered Elbow and/or Shoulder With Greater Than Two Simultaneous Powered Degrees of Freedom and Controlled by Non-Implanted Electrical Components Risks and Mitigation Measures Identified risk Mitigation measures Unintended Motion Electronic Input Testing.
  • Software Verification, Validation, and Hazards Analysis.
  • Wireless Testing.
  • Electromagnetic Compatibility (EMC) Testing. Non-clinical Performance Testing. Water/Particle Ingress Testing. Durability Testing. Battery Testing. Labeling. Adverse Tissue Reaction Biocompatibility Assessment. Battery Failure Battery Testing.
  • Water/Particle Ingress Testing.
  • Labeling.
  • Electromagnetic Incompatibility EMC testing.
  • Labeling.
  • Electrical Safety Issues (e.g., shock) Electrical Safety Testing.
  • Labeling.
  • Gripping Malfunction Non-clinical Performance Testing.
  • Software Verification, Validation, and Hazards Analysis.
  • Labeling.
  • High Risk Activities (e.g., driving) Labeling. Malfunction Due to Environmental Conditions Non-clinical Performance Testing.
  • Battery Testing.
  • Water/Particle Ingress Testing.
  • Wireless Testing. EMC Testing. Flammability Testing. Labeling. Use Error Clinical Studies.
  • Human Factors Studies.
  • Labeling.
  • FDA believes that the special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of the safety and effectiveness.

    An upper extremity prosthesis including a simultaneously powered elbow and/or shoulder with greater than two simultaneous powered degrees of freedom and controlled by non-implanted electrical components is 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).

    Section 510(m) of the FD&C Act provides that FDA may exempt a class II device from the premarket notification requirements under section 510(k) of the FD&C Act, if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. For this type of device, FDA has determined that premarket notification is necessary to provide reasonable assurance of the safety and effectiveness of the device. Therefore, this device type is not exempt from premarket notification requirements. Persons who intend to market this type of device must submit to FDA a premarket notification, prior to marketing the device, which contains information about the upper extremity prosthesis including a simultaneously powered elbow and/or shoulder with greater than two simultaneous powered degrees of freedom and controlled by non-implanted electrical components they intend to market.

    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 establishes special controls that refer 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 890

    Medical devices.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 890 is amended as follows:

    PART 890—PHYSICAL MEDICINE DEVICES 1. The authority citation for part 890 is revised to read as follows: Authority:

    21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.

    2. Add § 890.3450 to subpart D to read as follows:
    § 890.3450 Upper extremity prosthesis including a simultaneously powered elbow and/or shoulder with greater than two simultaneous powered degrees of freedom and controlled by non-implanted electrical components.

    (a) Identification. A upper extremity prosthesis including a simultaneously powered elbow and/or shoulder with greater than two simultaneous powered degrees of freedom and controlled by non-implanted electrical components, is a prescription device intended for medical purposes, and is intended to replace a partially or fully amputated or congenitally absent upper extremity. It uses electronic inputs (other than simple, manually controlled electrical components such as switches) to provide greater than two independent and simultaneously powered degrees of freedom and includes a simultaneously powered elbow and/or shoulder. Prosthetic arm components that are intended to be used as a system with other arm components must include all degrees of freedom of the total upper extremity prosthesis system.

    (b) Classification. Class II (special controls). The special controls for this device are:

    (1) Appropriate analysis/testing must validate electronic compatibility, electrical safety, thermal safety, mechanical safety, battery performance and safety, and wireless performance, if applicable.

    (2) Appropriate software verification, validation, and hazard analysis must be performed.

    (3) Non-clinical performance data must demonstrate that the device performs as intended under anticipated conditions of use. Performance testing must include:

    (i) Mechanical bench data, including durability testing, to demonstrate that the device will withstand forces, conditions, and environments encountered during use.

    (ii) Simulated use testing to demonstrate performance of arm commands and available safeguard(s) under worst case conditions and after durability testing.

    (iii) Verification and validation of force sensors and hand release button, if applicable, are necessary.

    (iv) Device functionality in terms of flame retardant materials, liquid/particle ingress prevention, sensor and actuator performance, and motor and brake performance.

    (v) The accuracy of the device features and safeguards.

    (4) Non-clinical and clinical performance testing must demonstrate the accuracy of device features and safeguards.

    (5) Elements of the device that may contact the patient must be demonstrated to be biocompatible.

    (6) Documented clinical experience and human factors testing must demonstrate safe and effective use, capture any adverse events observed during clinical use and demonstrate the accuracy of device features and safeguards.

    (7) Labeling for the Prosthetist and User Guide must include:

    (i) Appropriate instructions, warning, cautions, limitations, and information related to the necessary safeguards of the device, including warning against activities that may put the user at greater risk (e.g., driving).

    (ii) Specific instructions and the clinical training needed for the safe use of the device, which includes:

    (A) Instructions on assembling the device in all available configurations,

    (B) Instructions on fitting the patient,

    (C) Instructions and explanations of all available programs and how to program the device,

    (D) Instructions and explanation of all controls, input, and outputs,

    (E) Instructions on all available modes or states of the device,

    (F) Instructions on all safety features of the device, and

    (G) Instructions for maintaining the device.

    (iii) Information on the patient population for which the device has been demonstrated to be effective.

    (iv) A detailed summary of the non-clinical and clinical testing pertinent to use of the device.

    Dated: October 11, 2016. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2016-25001 Filed 10-17-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0610] Drawbridge Operation Regulation; Atlantic Intracoastal Waterway (AIWW), Wrightsville Beach, NC and Northeast Cape Fear River, Wilmington, NC AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedules that govern the S.R. 74 (Wrightsville Beach) Bridge across the Atlantic Intracoastal Waterway (AIWW), mile 283.1, at Wrightsville Beach, NC and the Isabel S. Holmes Bridge across the Northeast Cape Fear River, mile 1.0, at Wilmington, NC. The deviation is necessary to facilitate the 2016 PPD IRONMAN North Carolina “Beach2Battleship” Triathlon. This deviation allows these bridges to remain in their closed-to-navigation position.

    DATES:

    The deviation is effective from 6:30 a.m. to 6 p.m. on October 22, 2016.

    ADDRESSES:

    The docket for this deviation, [USCG-2016-0610] is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

    PPD Ironman North Carolina, on behalf of the North Carolina Department of Transportation, who owns the S.R. 74 (Wrightsville Beach) Bridge across the Atlantic Intracoastal Waterway (AIWW), mile 283.1, at Wrightsville Beach, NC and the Isabel S. Holmes Bridge across the Northeast Cape Fear River, mile 1.0, at Wilmington, NC, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.821(a)(4) and 33 CFR 117.829(a), respectively, to ensure the safety of the participants and spectators associated with the 2016 PPD IRONMAN North Carolina “Beach2Battleship” Triathlon.

    Under this temporary deviation, the S.R. 74 (Wrightsville Beach) Bridge will be maintained in the closed-to-navigation position from 6:30 a.m. to 11 a.m. on October 22, 2016, and the Isabel S. Holmes Bridge will be maintained in the closed-to-navigation position from 9:30 a.m. to 6 p.m. on October 22, 2016. These bridges are both double bascule drawbridges and have vertical clearances in the closed-to-navigation position of 20 feet and 40 feet, respectively, above mean high water.

    The Atlantic Intracoastal Waterway is used by a variety of vessels including, small commercial fishing vessels and recreational vessels. The Northeast Cape Fear River is used by a variety of vessels including, small commercial fishing vessels, recreational vessels, and tug and barge traffic. The Coast Guard has carefully coordinated the restrictions with waterway users in publishing this temporary deviation.

    Vessels able to pass through these bridges in their closed positions may do so at any time. These bridges will be able to open for emergencies and there are no immediate alternative routes for vessels to pass. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedules for these bridges so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

    In accordance with 33 CFR 117.35(e), these drawbridges must return to their regular operating schedules immediately at the end of the effective periods of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

    Dated: October 13, 2016. Hal R. Pitts, Bridge Program Manager, Fifth Coast Guard District.
    [FR Doc. 2016-25183 Filed 10-17-16; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 33 [EPA-HQ-OA-2016-0457; FRL-9954-30-OA] RIN 2090-AA40 Participation by Disadvantaged Business Enterprises in Procurements Under EPA Financial Assistance Agreements AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Withdrawal of direct final rule.

    SUMMARY:

    Because EPA received comments which could be construed as adverse, we are withdrawing the direct final rule to amend Part 33—Participation by Disadvantaged Business Enterprises in Procurements under EPA Financial Assistance Agreements published on July 28, 2016.

    DATES:

    Effective October 18, 2016 the rule published in the Federal Register of July 28, 2016 (81 FR 49539) (FRL-9946-27-OA) is withdrawn.

    FOR FURTHER INFORMATION CONTACT:

    Teree Henderson, Office of the Administrator, Office of Small Business Programs (mail code: 1230A), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: 202-566-2222; fax number: 202-566-0548; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    On July 28, 2016, we published a direct final rule (81 FR 49539) and a parallel proposal (81 FR 49591) amending the provisions for Part 33—Participation by Disadvantaged Business Enterprises in Procurements under EPA Financial Assistance Agreements. These amendments were issued as a direct final rule, along with a parallel proposal to be used as the basis for final action in the event EPA received any adverse comments on the direct final amendments. Because EPA received comments which could be construed as adverse, we are withdrawing the direct final rule to amend the general provisions for part 33 published on July 28, 2016.

    We stated in the direct final rule that if we received adverse comment by August 29, 2016, the direct final rule would not take effect and we would publish a timely withdrawal in the Federal Register. We subsequently received comments that could be construed as adverse on that direct final rule. We will address those comments in a subsequent final action based on the parallel proposal published on July 28, 2016 (81 FR 49591). As stated in the direct final rule and the parallel proposed rule, we will not institute a second comment period on this action.

    List of Subjects in 40 CFR Part 33

    Environmental protection, Grant programs.

    Dated: October 12, 2016. Gina McCarthy, Administrator.
    [FR Doc. 2016-25169 Filed 10-17-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 51, 52, 55, 70, 71 and 124 [EPA-HQ-OAR-2015-0090; FRL-9954-10-OAR] RIN 2060-AS59 Revisions to Public Notice Provisions in Clean Air Act Permitting Programs AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The U.S. Environmental Protection Agency (EPA) is revising the public notice rule provisions for the New Source Review (NSR), title V and Outer Continental Shelf (OCS) permit programs of the Clean Air Act (CAA or Act) and corresponding onshore area (COA) determinations for implementation of the OCS air quality regulations. This final rule removes the mandatory requirement to provide public notice of a draft air permit (as well as certain other program actions) through publication in a newspaper. Instead, this final rule requires electronic notice (e-notice) for EPA actions (and actions by permitting authorities implementing the federal permitting rules) and allows for e-notice as an option for actions by permitting authorities implementing EPA-approved programs. When e-notice is provided, the final rule requires, at a minimum, electronic access (e-access) to the draft permit. However, this final rule does not preclude a permitting authority from supplementing e-notice with newspaper notice and/or additional means of notification to the public. The EPA anticipates that e-notice, which is already being practiced by many permitting authorities, will enable permitting authorities to communicate permitting and other affected actions to the public more quickly and efficiently and will provide cost savings over newspaper publication. The EPA further anticipates that e-access will expand access to permit-related documents.

    DATES:

    The effective date of this final rule is November 17, 2016.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2015-0090. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., 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 electronically through http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    For further general information on this rulemaking, contact Mr. Peter Keller, U.S. EPA, Office or Air Quality Planning and Standards, Air Quality Policy Division (C504-03), Research Triangle Park, NC 27711, telephone (919) 541-2065, email [email protected], or Mr. Ben Garwood, U.S. EPA, Office of Air Quality Planning and Standards, Air Quality Policy Division (C504-03), Research Triangle Park, NC 27711, telephone (919) 541-1358, email [email protected]; or Ms. Grecia Castro, U.S. EPA, Office of Air Quality Planning and Standards, Air Quality Policy Division (C504-03), Research Triangle Park, NC 27711, telephone (919) 541-1351, email at [email protected]

    SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me?

    Entities potentially affected by this final rule include permitting authorities responsible for the permitting of stationary and OCS sources of air pollution or for determining COA designation for implementation of the OCS air regulations. This includes the EPA Regions and both EPA-delegated and EPA-approved air permitting programs that are operated by state, local or tribal agencies. Entities also potentially affected by this final rule include owners and operators of stationary and OCS sources that are subject to air pollution permitting under the CAA, as well as members of the general public who would have an interest in knowing about permitting actions, public hearings and other agency actions.

    B. Where can I obtain a copy of this document and other related information?

    In addition to being available in the docket, an electronic copy of this document will be posted at: http://www3.epa.gov/nsr/actions.html and http://www3.epa.gov/airquality/permits/actions.html.

    Upon its publication in the Federal Register, only the published version may be considered the final official version of the rule and will govern in the case of any discrepancies between the Federal Register published version and any other version.

    C. How is this document organized?

    The information presented in this document is organized as follows:

    I. General Information A. Does this action apply to me? B. Where can I obtain a copy of this document and other related information? C. How is this document organized? II. Background for Final Rulemaking III. Summary of the Final Rule Requirements A. E-Notice Provisions B. E-Access Provision C. EPA and Delegated Permitting Authorities Subject to Mandatory E-Notice and E-Access Requirements D. Permitting Authorities Not Subject to Mandatory E-Notice and E-Access Requirements E. Mailing Lists F. Updated Information Regarding E-Notice and E-Access for Minor NSR Permits G. Other Final Rule Provisions IV. Implementation of E-Notice and E-Access A. Permitting Authorities Implementing Federal Preconstruction Permit Program Rules B. Permitting Authorities Implementing EPA-Approved Preconstruction Permit Program Rules C. Permitting Authorities Implementing EPA-Approved Operating Permit Programs D. Permitting Authorities With EPA-Delegated Authority To Administer the Federal Operating Permit Program E. Implementation in an Affected Indian Country F. Best Practices for E-Notice and E-Access V. Responses to Significant Comments on the Proposed Rule A. General Comments on the EPA's Proposal To Remove the Mandatory Newspaper Publication Requirement From Certain Regulations and Instead Provide for E-Notice B. Comments on Requirement That Permitting Authorities Use a Consistent Noticing Method C. Comments on Requirement To Make E-Notice Mandatory for Federal Permit Actions D. Comments on Mandatory E-Access for Programs That Use E-Notice E. Comments on Final E-Notice Rule Implementation Timeframe/Transition F. Comments on Temporary Use of Alternative Noticing Methods G. Comments on Documentation/Certification of E-Notices H. Additional Guidance on E-Notice and E-Access for Minor NSR Permit Actions VI. Environmental Justice Considerations VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations K. Congressional Review Act (CRA) L. Judicial Review VIII. Statutory Authority II. Background for Final Rulemaking

    The CAA requires stationary sources of air pollution to obtain permits and authorizes the EPA to administer and oversee the permitting of such sources. To implement the CAA, the EPA promulgated permitting regulations for construction of sources pursuant to the NSR program under title I of the CAA, for operation of major and certain other sources of air pollutants under title V of the CAA and for sources located on the OCS under CAA section 328. These regulations are contained in 40 Code of Federal Regulations (CFR) parts 51, 52, 55, 70, 71 and 124, and cover the requirements for federal permit actions (i.e., when the EPA or a delegated air agency is the permitting authority 1 ) and the minimum requirements for EPA approval of state or tribal implementation plans (SIPs) 2 and title V permitting programs.3 These rules contain, among other things, requirements for public notice and availability of supporting information to allow for informed public participation in permit actions. These regulatory requirements for public participation in permitting and other actions are the subject of this final rule. The final rule revisions apply to the following: (1) Major source 4 air permits and permits for certain minor sources subject to title V issued by the EPA or by state, local, or tribal air agencies exercising federal authority delegated by the EPA; (2) the requirements for obtaining EPA-approval of state, local, or tribal air permitting programs; and (3) OCS permits and COA determinations for implementation of the OCS air quality regulations.

    1 In lieu of “permitting authority,” in this preamble and rule, we sometimes use the terms “permitting agency” and “reviewing authority.” These terms generally denote all forms of air permitting authorities, including EPA Regions, EPA-delegated air programs, and air agencies that are operated by state, local and tribal governments and permitting authorities that implement their own rules under an EPA-approved implementation plan. Furthermore, the rules for the federal permit programs sometimes use the terms “Administrator” and “Director” in referring to the permitting authority.

    2 SIPs, as used in this preamble, includes state and tribal implementation plans (SIPs and TIPs).

    3 NSR includes the minor NSR, Prevention of Significant Deterioration (PSD) and Nonattainment NSR (NNSR) permitting programs. Requirements for the NSR programs are contained in 40 CFR part 51 for approved state/tribal permitting programs and in 40 CFR part 52 for federal PSD permit programs. 40 CFR part 52 references part 124 for additional requirements. Requirements for approved title V operating permit programs are contained in 40 CFR part 70 and for federal operating permit programs in 40 CFR part 71. Requirements for the permitting of OCS sources and COA determinations are contained in 40 CFR part 55.

    4 The term “major source” in the title V program rules includes any “major stationary source” under the NSR program rules. See, e.g., 40 CFR 52.21(b)(1)(i) and 40 CFR 71.2. In this preamble, we use the terms “major source” and “major stationary source” interchangeably.

    While the CAA requires permitting authorities to offer the opportunity for public participation in the processing of air permits and other actions, it does not specify the best or preferred method for providing notice to the public. See, e.g., CAA sections 165(a)(2) and 502(b)(6). In the late 1970s and early 1980s, when the EPA first developed air permitting regulations to provide public notice for the major NSR program, newspaper advertisement was the most commonly accepted method for providing notice to the public of permit actions under those programs and other agency actions. Over the years, however, the availability of and access to the Internet and other forms of electronic media have increased significantly in the United States. One effect of this development is that circulation of newspapers and other print media has declined, making printed newspaper notice less effective in providing widespread public notice of permit actions in many cases. Many permitting authorities electronically post permit notices on their agency Web sites. For example, many state title V programs regularly provide electronic postings to assure adequate public notice. 40 CFR 70.7(h)(1). Such electronic notice mechanisms provide an effective, convenient and cost-efficient way to communicate permitting-related information to the majority of the public.

    Given these developments, the EPA has recognized that newspaper notice is no longer the only, or in many cases the most effective, method of communicating permitting actions to the public and has issued rules allowing alternate methods of communication. For example, in 2011, the EPA issued the Tribal NSR rules that contained, among other things, requirements for noticing of permits in Indian country that provided for options other than newspaper and print media. 76 FR 38748 (July 1, 2011). The July 2011 Tribal NSR rule provides options such as Web posting and email lists among the methods that the permitting authority may use to provide adequate public notice of such permits. Id. at 38764.

    Based on the foregoing and the EPA's objective to modernize, enhance and improve consistency in the public noticing provisions applicable to air permit actions, in December 2015 the EPA issued a proposed rule. 80 FR 81234 (Dec. 29, 2015). In that proposed rule, the EPA proposed to remove the mandatory requirement that draft permits for sources subject to the major NSR, title V or OCS programs and certain other actions be noticed in a newspaper of general circulation and instead allow (or in some cases require) the use of Internet postings to provide notice (i.e., e-notice). We also proposed these same revisions for COA designations in the OCS program, permit rescissions under the federal PSD program and for giving notice of EPA part 71 program effectiveness or delegation. In the case of permits issued by the EPA or other permitting authorities implementing 40 CFR parts 52, 55 or 71, we proposed to require that the permitting authority provide e-notice for all draft permits.5 For permits issued by other permitting authorities—specifically, agencies that implement an approved program meeting the requirements of 40 CFR parts 51 or 70—we proposed that those permitting authorities would have the option to adopt either e-notice or retain the newspaper noticing method. We proposed that these permitting authorities must, however, select either e-notice or newspaper notice as their consistent noticing method. In addition, for all their draft permits, they must provide notice to the public through the noticing method selected and must indicate the consistent noticing method selected in their permitting rules. We also proposed to require that, when a permitting authority adopts e-notice, it also must provide e-access. In the context of this rule, e-access means that the permitting authority must make the draft permit available electronically (i.e., on the agency's public Web site or on a public Web site identified by the permitting authority) for the duration of the public comment period. This final rulemaking notice does not repeat all of the discussion from the proposed rule, but refers interested readers to the preamble of the proposed rule for additional background.

    5 We did not propose nor are we finalizing any changes to the public notice requirements for OCS permits issued by delegated permitting authorities pursuant to 40 CFR 55.11.

    III. Summary of the Final Rule Requirements

    This section provides a brief summary of the requirements of the final rule. Further discussion of these requirements, including implementation and summaries of our responses to significant comments received on the proposed rule, are provided in subsequent sections.

    In this final action, the EPA is revising the public notice provisions for the NSR, title V and OCS programs to remove the mandatory requirement to provide public notice of a draft permit (and certain other program actions) through publication in a newspaper of general circulation. This final rule requires the use of e-notice to provide public notice of draft permits for federal permits while allowing e-notice as an option for permits issued under EPA-approved programs. More specifically, to implement the shift from mandatory newspaper noticing to e-notice, this final rule includes revisions to the public notice provisions in 40 CFR 51.161 (state/tribal plan requirements); 40 CFR 51.165 (state/local/tribal NNSR permits); 40 CFR 51.166 (state/local/tribal PSD permits); 40 CFR 52.21 (EPA/delegated agency-issued PSD permits); 40 CFR part 70 (state/local/tribal title V operating permits); 40 CFR part 71 (EPA/delegated agency-issued title V operating permits); 40 CFR part 55 (EPA-issued OCS permits and COA designations); and the portions of 40 CFR part 124 applicable to EPA-issued PSD and OCS permits. This final action also requires that a permitting authority provide e-access when it adopts the e-notice method to provide public notice of a draft permit.

    A. E-Notice Provisions

    In order to satisfy the provision for e-notice of a draft permit, the permitting authority shall electronically post, for the duration of the public comment period, the following information on a publicly accessible Web site identified by the permitting authority: (1) Notice of availability of the draft permit for public comment; (2) Information on how to access the permit record (either electronically and/or physically); (3) Information on how to request and/or attend a public hearing on the draft permit; and (4) All other information currently required to be included in the public notice under the existing regulations. In addition, where already required by the current rules, the permitting authority shall maintain a mailing list of persons who request to be notified of the permitting activity and shall distribute (e.g., by email, postal service) the notice to those persons. While this final rule expressly requires that the draft permit notice direct interested parties to information on how to request and/or attend a public hearing and how to access additional information relevant to the draft permit, it does not alter any existing requirements regarding the content of the public notice. Requirements regarding additional information in the notice vary across the different sections of the permitting rules and may further vary among different individual permitting authorities. This final rule does not amend or affect regulatory requirements pertaining to the provision of notice of final permit decisions. See e.g., 40 CFR 124.15(a).6

    6 The Environmental Appeals Board (EAB) has held that the notification requirements of 40 CFR 124.15(a) (and similar provisions) cannot be fulfilled by posting the final decision regarding a draft permit on a Web site. See In Re Hillman Power Co., LLC, 10 E.A.D. 673, 680 n. 4 (EAB 2002). Where there is an identified participant in the proceeding who has commented, the EPA reads section 124.15(a) to require that the permitting authority mail a copy of the final permit decision to the participant or provide some other form of personal notification. This may include email notification. For additional detail on the EAB's reasoning in the Hillman Power case, see Order Directing Service of PSD Permit Decision on Parties That Filed Written Comments on Draft PSD Permit, Denying Motions to Dismiss, and Directing Briefing on the Merits (May 24, 2002), available at: https://yosemite.epa.gov/oa/EAB_Web_Docket.nsf/0CCE572C43D92F218525706C0067DACA/$File/hillman.pdf. While the EAB expressed concern in this order regarding the possibility that some parties may not see an Internet post immediately, this was in the context of providing identified persons with a right to appeal a permit decision. Further, the Board was contrasting the merits of Internet posting and direct personal notification, rather than comparing the merits of Internet and newspaper notice. As discussed elsewhere in this rule, posting notices of draft permits on the Internet offers some benefits that are not provided from a one-time publication in a print newspaper. In addition, this rule retains and enhances the option for interested persons to be placed on a list to receive personal notification of draft permits.

    B. E-Access Provision

    In order to satisfy the requirement for e-access when e-notice is provided, the permitting authority shall electronically post, for the duration of the public comment period, the draft permit on a publicly accessible Web site identified by the permitting authority, which may include the permitting authority's public Web site, an online state permits register, or a publicly-available electronic document management Web site that allows for downloading documents. It is important to note that, while e-access in this final rule pertains to the availability of and access to the draft permit during the public comment period, nothing in this rule alters the requirement for a permitting authority to maintain a record of the permit action and to make it available to the public. Furthermore, nothing in this final rule affects a permitting authority's record retention policies and requirements. A permitting authority that is satisfying the rule requirements for e-access by posting the draft permit on a Web site must also provide the public with reasonable access to the other materials that support the permit decision (e.g., the permit application, statement of basis, fact sheet, preliminary determination, final determination, and response to comments) as required by existing regulations. This final rule clarifies that access to the other materials comprising the permit record may be provided either electronically or at a physical location (such as a public library), or a combination of both methods, given that some documents (such as air quality modeling data) may be too large to post online on a Web site but may be made available as part of the permit record either as hardcopy or on a data storage device. The electronic posting of draft and final permits, including information supporting the permit decisions (e.g., permit applications), is subject to the applicable policies on CBI and requirements of the permitting authority. Consequently, some permit-related documents may be redacted or otherwise withheld from viewing on a Web site or public library if it is determined that the document contains CBI.

    C. EPA and Delegated Permitting Authorities Subject to Mandatory E-Notice and E-Access Requirements

    For permits that are issued by the EPA or by a permitting authority that implements the EPA's federal permitting rules (i.e., 40 CFR parts 52, 55, 71 or 124) under delegated federal authority, this final rule removes the mandatory requirements to provide newspaper notice and access to the draft permit information at a physical address, and replaces those requirements with mandatory e-notice and mandatory e-access, as those terms are defined in this rule, as the consistent noticing method for draft permit actions 7 under the federal rules for NSR and title V, and for all EPA-issued OCS permits. While this final rule requires e-notice as the primary form of public notice for such draft permit actions under the federal regulations, permitting authorities may, when appropriate, supplement the e-notice with an additional form (or forms) of notice (e.g., newspaper publication, fliers, or social media postings). Nothing in this final rule precludes the use of supplemental notice mechanisms.

    7 As used here and from this point forward in this final rule preamble, the term “permit” or “permit action” includes any major source or major modification preconstruction permit and title V permit actions subject to the public notice provisions affected by this final rule.

    D. Permitting Authorities Not Subject to Mandatory E-Notice and E-Access Requirements

    For the noticing of draft permits issued by permitting authorities with their own EPA-approved rules under 40 CFR part 51 or 70, this final rule removes the mandatory newspaper notice requirement for these programs and provides the option for the agency rules to require either: (1) E-notice and e-access as these terms are used in the context of this rule, or (2) newspaper notice with either electronic access (e.g., Web site) and/or physical access (e.g., a public library). A key aspect of this approach is that the permitting authority is required to adopt one noticing method—known as the “consistent noticing method”—to be used for all of its permit notices. Thus, if a permitting authority selects e-notice as its consistent noticing method, it must provide e-notice (along with e-access) for all of its draft permit notices in order to ensure that the public has a consistent and reliable resource to turn to for all draft permit notices. There is a requirement in 40 CFR part 51 to make available, in at least one location in each region in which the proposed source would be constructed, a copy of certain elements of the permit record. We are clarifying that this requirement may be met by making such materials available at a physical location or on a public Web site identified by the permitting authority. Consistent with the requirements for notices issued by the EPA and delegated permitting authorities implementing the federal regulations, as discussed previously, nothing in this final rule precludes permitting authorities operating under EPA-approved rules from using additional forms of notice. Thus, if a permitting authority elects to use e-notice as its consistent noticing method, it may provide additional means of notice as appropriate, including newspaper publication or any other mechanism. Similarly, a permitting authority providing e-access may elect to also provide access to the elements of the administrative record for which e-access was provided at a physical location. The EPA encourages all permitting authorities to consider facility-specific and permit-specific facts such as expected public interest and environmental justice considerations in determining the appropriate method(s) for public notice and access to the administrative record for draft permits.

    E. Mailing Lists

    Some of the regulatory sections affected by this final rule have a mailing list requirement and some do not. This rule includes regulatory revisions to amend the EPA's solicitation obligations associated with required mailing lists, but otherwise keeps the mailing list requirements in place. With respect to the EPA's mailing list obligations for the federal title V program, we are removing the specific language within 40 CFR 71.11(d)(3)(i)(E) and 71.27(d)(3)(i)(E) that requires the EPA to solicit mailing list membership through area lists and periodic publication in the public press.8 We are making similar changes to 40 CFR 124.10(c), which contains public notice method requirements applicable to PSD and OCS permits. The rules now say that the permitting authority may use generally accepted methods (e.g., hyperlink sign-up function or radio button on an agency Web site or a sign-up sheet at a public hearing) that enable parties to subscribe to a mailing list.

    8 The proposed rule had a minor typographical error stating that it was revising 40 CFR 71.27(d)(4)(i)(G). In the final rule, the EPA is adding 40 CFR 71.27(d)(4)(i)(H) with the text that was proposed in 40 CFR 71.27(d)(4)(i)(G).

    F. Updated Information Regarding E-Notice and E-Access for Minor NSR Permits

    Through guidance to permitting authorities issued in 2012, the EPA clarified its view on what constitutes public notice for minor NSR permit programs and what is considered adequate to meet the requirement of notice by prominent advertisement in 40 CFR 51.161(b)(3). See “EPA's 2012 Memorandum.” 9 Specifically, the EPA's 2012 Memorandum clarified that the regulatory requirement for notice by prominent advertisement was media neutral and thus sufficiently broad to allow for e-notice. In the proposed rule, the EPA stated that it intended to clarify that the EPA's interpretation of 40 CFR 51.161(b)(3) also applies to the requirement in 40 CFR 51.161(b)(1) to make available for public inspection, in at least one location in the affected area, the information submitted by the owner or operator and the state or local agency's analysis of the proposed source's effect on air quality. Specifically, we proposed to clarify that allowing e-access to this information by way of a Web site identified by the permitting authority satisfies the 40 CFR 51.161(b)(1) public inspection requirement. The EPA received no adverse comments regarding this proposed clarification. Therefore, in this final rule the EPA is revising 40 CFR 51.161(b)(1) to add the following: “This requirement may be met by making these materials available at a physical location or on a public Web site identified by the State or local agency.”

    9 Memorandum from Janet McCabe, Principal Deputy Assistant Administrator, Office of Air and Radiation, “Minor New Source Review Program Public Notice Requirements under 40 CFR 51.161(b)(3)” (April 17, 2012). See http://www2.epa.gov/sites/production/files/2015-07/documents/pubnot.pdf. The EPA's rules generally require less extensive public participation procedures for the permitting of minor sources and minor modifications.

    In addition, the EPA has determined that the limitation in Footnote 1 in the EPA's 2012 Memorandum, excluding synthetic minor permits, is no longer appropriate.10 The EPA will attach a notification to the electronic version of the EPA's 2012 Memorandum indicating that the media neutral interpretation also applies to synthetic minor permits.

    10 A synthetic minor permit is a permit that contains restrictions to avoid applicability of major NSR requirements. Under the NSR program, such restrictions must be legally and practically enforceable. See, e.g., 67 FR 80186, 80191 (December 31, 2002).

    G. Other Final Rule Provisions

    As proposed, the EPA is extending the use of e-notice methods to three non-permitting actions in this final rule. In each of the following cases, the regulatory provisions have previously required notice of the action by way of newspaper publication:

    • The OCS air regulations in 40 CFR part 55 apply to more than just OCS permitting actions. Specifically, when the EPA makes a COA designation determination, it must do so by way of a process that allows for public comment on the draft determination. Through this final action, we are requiring e-notice of the COA designation determination.

    • The existing federal PSD regulations contain a provision for permit rescission that only refers to newspaper notification. Specifically, paragraph 40 CFR 52.21(w)(4) requires that, if an agency rescinds a permit, it shall give adequate notice of the rescission, and that newspaper publication shall be considered adequate notice. In this final rule, the EPA is replacing the requirement for newspaper publication with a requirement that the Administrator notify the public of a permit rescission by e-notice.

    • When the EPA takes action to administer and enforce an operating permits program in accordance with 40 CFR 71.4(g), it will publish a notice in the Federal Register and, to the extent practicable, publish notice in a newspaper of general circulation within the area subject to the part 71 program effectiveness or delegation. In this final rule, the EPA is replacing the newspaper publication provision with the provision for e-notice.

    As proposed, the EPA is not in this final rule revising the public participation requirements in the plantwide applicability limitation regulations, which reference the public participation procedures in 40 CFR 51.161; 40 CFR 51.165(f)(5); 40 CFR 51.166(w)(5); Appendix S to part 51 section IV.K.5; and 40 CFR 52.21(aa)(5). Additionally, this final rule does not change the requirements for NNSR, minor NSR, and synthetic minor NSR permits in Indian country that are contained in 40 CFR part 49 and already provide means of public noticing other than newspaper publication. See 40 CFR 49.157 (minor NSR and synthetic minor NSR permits) and 40 CFR 49.171 (NNSR permits).

    The EPA is not finalizing certain proposed revisions to paragraphs in 40 CFR parts 55, 51 and 71 that sought to clarify that the terms “send,” “mail” and “in writing” and variants of those terms may include email. Specifically, the EPA proposed to revise 40 CFR 51.166(q)(2)(iv), 40 CFR 55.5(f)(2) and (f)(4), 40 CFR 71.11(d)(3)(i) introductory text and 40 CFR 71.27(d)(3)(i) introductory text by adding a parenthetical indicating that those terms may include email. Without necessarily commenting on these specific provisions, one commenter generally urged EPA to avoid language in the rules that might limit the use of new communications tools and require subsequent revisions to enable permitting authorities to use them. With this idea in mind, upon further consideration, the EPA determined that the existing rule language in the subject paragraphs can reasonably be interpreted to include email and other forms of communication. The EPA also determined that adding the proposed parentheticals could unintentionally limit flexibility to apply additional communications tools or imply a different meaning elsewhere in the regulations where those same terms are used and EPA did not propose adding the parenthetical. Therefore, we are not finalizing those proposed revisions.

    IV. Implementation of E-Notice and E-Access

    This section addresses implementation of this final rule and also recommends “best practices” for e-notice and e-access. As discussed in our responses to comments in Section V of this document, the EPA has expanded the list of best practices included in the proposed rule to address e-notice and e-access documentation and certification and measures to address periods of Web site unavailability (e.g., outages and emergencies), including the use of temporary alternative noticing methods. These best practices are not requirements under this final rule. Instead, they comprise recommendations intended to foster improved communication and outreach of permit notices beyond the minimum requirements.

    A. Permitting Authorities Implementing Federal Preconstruction Permit Program Rules

    Air permitting programs that implement the amended federal public notice provisions under 40 CFR parts 52, 55 and 124 are required to implement e-notice and e-access by the effective date of this final rule on November 17, 2016. This includes EPA Regions, air agencies that are delegated federal authority by the EPA to issue permits on behalf of the EPA (via a delegation agreement) 11 and any air agencies that have their own rules approved by the EPA in a SIP and the SIP incorporates by reference the federal program rules amended in this action and automatically updates when these EPA rules are amended. However, in the case of SIP rules that incorporate by reference the federal noticing provisions, the agency may instead select newspaper notice as their consistent noticing method by revising their SIP rules consistent with the part 51 provisions promulgated here.

    11 With the exception of permitting authorities that are delegated authority to issue permits under 40 CFR part 55.

    As described in our responses to comments in Section V of this document, the EPA did not receive any comments that identified specific details about technical issues that affected permitting authorities are facing that would likely impede their ability to implement e-notice and e-access by the effective date of this rule. While we acknowledge that certain air agencies may need time to change their respective statutes, rules, programs or policies to fully implement e-notice (i.e., to remove mandatory newspaper publication from their own program requirements), we believe that these agencies are in a position to comply with the requirements for e-notice and e-access on or before the date this final rule becomes effective. Since many of the affected programs already use e-notice and e-access as part of their public notice practices, little or no change would be necessary for those programs to comply with this final rule. Therefore, in order to avoid delay in implementation, we are not extending the effective date of this final rule for the EPA and other air agencies that implement the federal program rules.

    B. Permitting Authorities Implementing EPA-Approved Preconstruction Permit Program Rules

    To the extent a permitting authority with an approved program, meeting the requirements of 40 CFR part 51, is using a consistent noticing method and wants to retain the same noticing method, there is no need to revise the applicable program rules. A permitting authority with an approved program that chooses e-notice and e-access as its consistent noticing method may need to revise its applicable program rules and seek the EPA's approval of the revision in order to begin to implement e-notice. Similarly, a permitting authority that implements rules that incorporate by reference the procedural requirements in the EPA's federal program regulations (40 CFR part 52), but does not provide that its rules automatically update upon the EPA amending its rules, will need to amend its regulations and seek the EPA's approval of those revisions in order to implement e-notice and e-access in lieu of newspaper notice. However, permitting authorities with NNSR programs approved under 40 CFR 51.165 have been subject to the public participation requirements at 40 CFR 51.161 and thus may be able to interpret their existing rules to currently allow for implementing e-notice in lieu of newspaper notice.12

    12 Although this rule adds public participation requirements to section 51.165 in new paragraph (i), this additional paragraph does not require a revision to a state NNSR program that already provides for a consistent noticing method by either newspaper or internet posting. Since section 51.161 does not address public hearings, this final rule does not include the language that was in the proposed version of 40 CFR 51.165(i) about providing information on requesting and/or attending a public hearing.

    Under this final rule, it is voluntary for these permitting authorities to move to e-notice and e-access. Likewise, nothing in the final 40 CFR part 51 rules prevents a permitting authority from continuing or beginning to implement e-notice and e-access methods. However, depending on the permitting authority's rules, there may be ongoing obligations to continue with newspaper notices until the agency revises its permitting rules.

    C. Permitting Authorities Implementing EPA-Approved Operating Permit Programs

    In accordance with 40 CFR 70.4(i), a program revision may be necessary when the relevant federal regulations are modified or supplemented. When 40 CFR part 70 is revised after the permitting authority program is approved, the EPA determines the need for conforming revisions. However, the approved program may initiate a program revision on its own initiative if the program revision is required to implement the revised 40 CFR part 70 rules. See, e.g., 40 CFR 70.4(a) and (i). The EPA is not soliciting program revisions for any approved programs in response to this final rule. Under this final rule, permitting authorities implementing part 70 have a choice as to whether or not to adopt e-notice as their consistent method of public notice of air permits. If a permitting authority chooses the e-notice approach and a program revision is necessary (e.g., additional authority is needed), then the permitting authority must initiate a program revision by undergoing a state rule change and submitting a program revision package to the EPA for review and approval as per 40 CFR 70.4(i)(2). Consistent with the duty to keep the EPA apprised of such proposed changes, if the permitting authority plans to change its implementation practice from newspaper to e-notice and e-access based on its analysis that its approved rules allow for e-notice and e-access without any changes, the permitting authority must forward the appropriate language to the Regional office prior to changing its practice. Upon review, the Regional office may request a formal submittal for a program revision.

    In this final rule, the EPA supports the position that program revisions for converting part 70 programs to e-notice will generally be nonsubstantial given that the permitting authority needs only to revise its permitting rules to clarify its implementation of e-notice and e-access. It does not need to seek additional authority for giving notice by “other means.” In many cases, the permitting authority's current practice includes electronic posting of public notices and the draft permit, showing that it has adequate resources for implementing the revised 40 CFR part 70 notice requirements. Accordingly, we note that EPA Regional offices would generally expect to process approvals of these program revisions using procedures for nonsubstantial program revisions.13

    13 See 40 CFR 70.4(i)(2)(iv).

    With regard to 40 CFR part 70, these final rule revisions remove only the mandatory aspect of newspaper noticing, allowing for the use of that method as a consistent method for general public notice, but also allowing e-notice as an alternative consistent method. All other obligations, such as the requirement to have or maintain a mailing list and provide notice by other means, as appropriate, remain unchanged. The EPA interprets the existing mailing list obligations to include either electronic or hardcopy mailing list or both.

    D. Permitting Authorities With EPA-Delegated Authority To Administer the Federal Operating Permit Program

    With regard to the 40 CFR part 71 program revisions, a permitting authority that has delegated federal authority to administer the 40 CFR part 71 program will likely need to update its delegation agreement to update its notice procedures consistent with the e-notice requirement in the federal rules.

    E. Implementation in an Affected Indian Country

    This final rule changes the requirements for PSD permits that the EPA issues in Indian country, as well as PSD permits that are issued by a tribe through a delegation agreement or by any tribe that has an approved TIP that incorporates by reference the public noticing requirements for PSD permits in the federal rules in 40 CFR part 124 (through incorporation of 40 CFR 52.21(q)). Since this final rule revises the noticing requirements in 40 CFR part 71, which applies to Indian country absent an approved 40 CFR part 70 program, the revisions would affect the public notice procedures for the majority of title V operating permits in tribal lands.14 A tribal agency with an approved 40 CFR part 70 program will have the option to implement e-notice under the same terms that apply to other approved 40 CFR part 70 programs (i.e., when a conforming revision clarifying the consistent method becomes effective for the program).

    14 All states, certain local permitting agencies and currently one tribe have approved part 70 programs. The EPA administers the 40 CFR part 71 federal program in most areas of Indian country (one tribe has been delegated implementation authority) and on the OCS (where there is no delegated state permitting authority).

    F. Best Practices for E-Notice and E-Access

    This section contains EPA-recommended best practices for e-notice and e-access. These best practices are not required to satisfy the e-notice and e-access provisions in this final rule, but may be helpful in the course of providing communication to the public about permitting actions. The recommended best practices for e-notice and e-access include:

    • Providing notice of the final permit issuance on the Web site.15

    15 Noticing a final permit decision on the Web site is not a substitute for complying with the regulatory requirements for the provision of notice on final permit decisions. See footnote 6, supra, referencing the EAB's decision in In Re Hillman Power Co., LLC.

    • Soliciting for the mailing list on the Web site (e.g., Web site equipped with radio button, hyperlink of “click here” function to subscribe).

    • Providing options for email notification that enable subscribers to tailor the types of notifications they receive (e.g., a person may request notification of only draft permit notices for major source actions rather than receiving notice of all permitting activity by the permitting authority).

    • Providing, where practicable, hyperlinks on the Web site that refers users to e-notice postings and/or newspaper postings, access to draft permit Web postings and postings of other permitting actions.

    • Continued posting of the draft permit on the Web site beyond the date of the end of the public comment period (e.g., until the issuance of the final permit or until the permit application has been denied or withdrawn).

    • Posting the final permit on the Web site for a specific period of time after the issuance of the permit (e.g., through the permit appeal period or petition period).16

    16 Noticing a final permit decision on the Web site is not a substitute for complying with the regulatory requirements for the provision of notice on final permit decisions. See footnote 6, supra, referencing the EAB's decision in In Re Hillman Power Co., LLC.

    • Posting (or hyperlinking to) other key permit support documents on the agency Web site or on a publicly-available online document management site (e.g., Federal Docket Management System (FDMS17 )), such as the permit application, statement of basis, fact sheet, preliminary determination, final determination, and response to comments.18

    17 The FDMS at http://www.regulations.gov is a Web-based docket system used for, among other things, federal permitting actions that require public notice and comment. This searchable docket system allows for public access and downloading of the draft permit and permit-related documents. The Web site also allows the public to register to receive email alerts to track activity on selected dockets. Similar online data management systems exist in a number of states and allow permitting agencies to provide electronic access to permits and other records.

    18 While the EPA believes it is a best practice to electronically post as many of the key permit decision related documents and information as possible, we recognize that air quality modeling runs and other permit data files may not be compatible with e-access. These documents typically cannot be uploaded to an electronic format due to the size and storage requirements in the electronic posting. In some cases, permitting authorities may choose to upload a description of these documents with directions on how to access the files.

    • Providing evidence or a certification of the posting of the e-notice and draft permit to the Web site in the permit record indicating the date(s) of the availability of the notice and draft permit on the Web site pursuant to applicable permitting authority regulations or policies. One example of such certification would be providing a printout of the applicable Web site pages and a “Memorandum to the File” by the permit writer documenting the date the e-notice was posted, the Web site address where the e-notice was posted and the date through which the posting remained available.

    • Providing for alternative notice methods or public comment period extension in the event of prolonged Web site unavailability (e.g., due to malfunctions, transitions to a different Web site platform, or emergency situations that result in prolonged e-notice and e-access system outages) during the public comment period.

    Since mid-2015, the EPA has been developing a National Public Notices Web site for publishing public notices for all EPA actions subject to such notice requirements. This project is expected to be completed and implemented by the end of 2016, providing a single location for all EPA public notices (https://www.epa.gov/publicnotices). Each individual public notice Web page will be listed on the EPA National Public Notices Web site's dynamic list throughout the public comment period, and the list will be searchable and filterable. The public notice Web pages will be designed to contain all related documents or a link to such documents and may include a sign-up option for the public to receive email notifications. We welcome other permitting authorities to explore the forthcoming EPA National Public Notices Web site when it is deployed and to use it as a guide to designing and implementing, or improving, their own e-notice and e-access platforms.

    In addition, permitting authorities may wish to consider the recommendations provided by the National Environmental Justice Advisory Council (NEJAC) in a 2011 report 19 for improving noticing methods for reaching underserved and environmental justice (EJ) communities. These recommendations emphasize direct communication in appropriate languages and include many of the practices identified above, as well as press releases, radio announcements and posting of signs.

    19 “Enhancing Environmental Justice in EPA Permitting Programs,” National Environmental Justice Advisory Council (April, 2011), pages 20-21, available at https://www.epa.gov/sites/production/files/2015-02/documents/ej-in-permitting-report-2011.pdf.

    V. Responses to Significant Comments on the Proposed Rule

    The EPA received 29 comments on the proposed rule. In this section, we summarize the major comments and our responses. For details of all the significant comments and our responses, please refer to the Response to Comments document in the docket for this rulemaking.

    A. General Comments on the EPA's Proposal To Remove the Mandatory Newspaper Publication Requirement From Certain Regulations and Instead Provide for E-Notice 1. Summary of Proposal

    The EPA proposed to revise the public notice rule provisions for the NSR, title V and OCS permit programs of the CAA and the corresponding COA determinations for implementation of the OCS air quality regulations by removing the mandatory requirement to provide public notice of a draft air permit, as well as certain other program actions, through publication in a newspaper and instead provide for e-notice of these actions.

    2. Brief Summary of Comments

    The EPA received numerous comments supporting the transition from newspaper publication to e-notice and the vast majority of commenters supported the proposal in general. All state and local agency commenters generally supported the proposal, stating that e-notice would: (1) Significantly improve communication with the public on permit actions in comparison to a one-day newspaper notice; (2) result in broader and better informed public participation; (3) reduce costs and conserve air agency resources; (4) improve public access by making permit actions immediately available through convenient and reliable electronic media outlets; (5) improve communication with EJ communities and other target audiences; (6) allow for information to be made available for an extended time period; and (7) provide flexibility for permitting authorities and sources by avoiding time delays associated with newspaper publication and allowing for faster correction of errors and rescheduling of events. Several of the state and local air agency commenters indicated that they currently provide e-notice and e-access for their draft permits and had realized many of the benefits cited. State agency commenters cited specific costs associated with newspaper publication of permit notices, ranging from $13,500 to $24,000 per year, and stated that they anticipated cost savings of similar magnitude after implementing e-notice.

    Several commenters supported the EPA's conclusion that there have been substantial changes in technology, the media and the way the public accesses information. Commenters noted that electronic media, such as the Internet, have become the predominant means of communicating, generally making such media a more effective means of public notification than newspaper publication. Commenters noted that this conclusion applied not only to the public in general, but also for EJ communities. One commenter noted that EJ communities today obtain and share more information through the Internet than through newspaper circulation. One state commenter noted that they have been e-noticing draft PSD and title V permits in the same manner the EPA proposed for more than 10 years, and that they found e-notice to be a highly effective mechanism for communicating actions to the general public. Another commenter noted that they believe e-notices have been an effective and convenient way to communicate permitting-related information to the public, enabling broader and faster dissemination of information to the public as compared to newspaper notices. Another commenter noted that their district had already been encouraged to provide e-notice by EJ advocates, noting that such notices improve the level of available information and customer service offered to the public, including disadvantaged communities, by allowing the district to immediately make available bilingual copies of permitting action notices. Further, the commenter noted that public outreach initiatives cannot be nearly as effective with just newspaper notification.

    Several commenters urged the EPA not to require permitting authorities that implement the federal permitting regulations to use solely e-notice, and rather to allow such agencies to retain the ability to provide alternative forms of notice, such as newspaper, in addition to the mandatory e-notice provisions. One commenter indicated that it was not entirely clear in the proposed language in 40 CFR 124.10 that such supplemental noticing methods were not precluded.

    Three commenters, including a newspaper industry association (newspaper group), opposed the proposal to remove the mandatory newspaper publication requirements from the regulations and instead allow for e-notice. The newspaper group, while supporting the EPA's intention to provide e-notice of draft permits and certain other actions under the CAA, objected to the removal of mandatory newspaper publication requirements for public notices on several grounds. The commenter did not believe that e-notice constitutes sufficient notice and felt that the proposal would result in less public awareness of permits issued under the CAA. The commenter opined that the newspaper industry specialized in noticing and would generally provide a better method for noticing due to a much broader readership and ability to reach certain audiences. The commenter stated that relying solely on the Internet to provide public notice would disadvantage significant numbers of rural, elderly, low-income and/or less-educated Americans without Internet access. The commenter also contended that the proposal runs counter to over 200 years of tradition, suggesting that a public notice should be published by an independent third party, provide archiving ability, be accessible and be verifiable. The commenter further thought that the government's Web sites will not be as user-friendly as some newspapers that provide print and Internet notification. Finally, the commenter thought that the cost savings from eliminating newspaper notices is most likely illusory. Another commenter, representing a neighborhood organization, believed that e-notice would result in less notification and less citizen engagement in the decision process and that e-notice has not been shown to meet or exceed the standards established by newspaper publication.

    3. EPA Response

    We agree with the majority of commenters that e-notice meets the public notice requirements and that, compared to newspaper notice, e-notice is at least as effective and, in most cases, more effective, to provide notice to the public about draft air permits and other subject actions. E-notice is more efficient and will result in cost savings to permitting authorities. Therefore, the EPA is finalizing the e-notice rule provisions substantially as proposed. We found the comments from air agencies particularly compelling. These air agencies (who serve as permitting authorities) found that e-notice and e-access have been an effective and convenient way to communicate permitting-related information to the public, enabling broader and faster dissemination of information to the public as compared to newspaper notices. In particular, air agencies found that e-notices improve the level of available information and customer service offered to the public, including EJ communities. In response to commenter concerns that the proposed rule would preclude the use of supplemental noticing methods for any affected permitting authorities, we would like to clarify that this is not the case. The EPA indicated in the proposed rule and reiterates in this final rule that all affected permitting authorities, including those that implement the federal program regulations (i.e., the EPA, delegated programs and programs that incorporate by reference the federal regulations), will continue to have the authority to use additional means of public notice as appropriate, including newspaper publication or any other communication means. Nothing in this final rule precludes such supplemental notice measures when appropriate and the EPA encourages it. In response to the request for more clarity that 40 CFR 124.10 provides discretion for supplemental notice, we note that 40 CFR 124.10(c)(4) already provides for the use of any other noticing method.

    With regard to the comments received opposing our proposal to remove the mandatory newspaper notice requirement for permit actions, we disagree that this shift will diminish the public notice process and its effectiveness. To the contrary, as noted previously, the majority of comments received support the shift to e-notice to meet the public notice regulatory requirements. Many of those commenters were state and local air agencies that cited specific experience in implementing e-notice that resulted in significant benefits in the public notice process, including reaching target communities such as EJ communities. The newspaper group alleges that e-notices are insufficient and cite to several studies that they claim support the effectiveness of newspaper advertisement. The EPA does not dispute the fact that newspaper advertisements, including public notices, may be effective in some cases, and this final rule does not preclude the use of newspaper public notices under any circumstances. However, recent studies strongly support the EPA's position that newspaper circulation has declined, and continues to decline, and that the Internet has become the predominant medium by which the public obtains information. The Pew Research Center estimates that daily circulation of printed newspapers declined 30 percent, from 62.3 million in 1990 to 43.4 million in 2010.20 More recent data from the Pew Research Center show that this trend has continued through 2015, with average weekday newspaper circulation, print and digital combined, falling 7 percent in 2015, the greatest decline since 2010.21 While digital circulation crept up 2 percent in 2015, it accounted for only 22 percent of total newspaper circulation.22 Conversely, Internet use among the public in the United States has expanded tremendously and continues to penetrate all demographic groups. The Department of Commerce reports that as of July 2015, about 75 percent of all adults and children aged 3 years and older use the Internet.23 Internet use through libraries provides the most widespread availability of free regular Internet access to the general public. The American Library Association's (ALA) “Public Library Funding & Technology Access Study (2010-2011)” reports that 99.3 percent of public libraries offer public access to computers and the Internet.24

    20 Pew Research Center, The State of the News Media 2011, available at http://www.stateofthemedia.org/2011/newspapers-essay/data-page-6.

    21 Pew Research Center, The State of the News Media 2016, page 4, available at http://www.journalism.org/2016/06/15/state-of-the-news-media-2016/.

    22Id.

    23 U.S. Department of Commerce, National Telecommunications & Information Administration, Digital National Data Explorer, available at https://www.ntia.doc.gov/other-publication/2016/digital-nation-data-explorer.

    24See Executive Summary of the ALA study, page 7, available at http://www.ala.org/research/sites/ala.org.research/files/content/initiatives/plftas/2010_2011/plftas11-execsummary.pdf.

    During the last decade, the federal government and many state governments have been gravitating toward Internet publishing of notices, announcements and other information, further supporting the adequacy of Internet publication of such notices. In the federal sphere, this trend is exemplified by: (1) The E-Government Act of 2002,25 which generally requires and encourages federal agencies to better manage and promote Internet and information technology use to bring about improvements in government operations and customer service; (2) Executive Order 13563 (January 18, 2011), Improving Regulation and Regulatory Review, which directs the federal government to modify and streamline outmoded and burdensome regulations and specifically states that each agency shall afford the public a meaningful opportunity to comment through the Internet on any proposed regulation; and (3) Executive Order 13576 (June 13, 2011), Delivering an Efficient, Effective, and Accountable Government, which encourages federal agencies to cut waste, streamline structure and operations, and reinforce performance and management reform. With these actions, Congress and the President have demonstrated their interest in making government more efficient and effective through information technology, and several federal agencies (including the EPA) have promulgated rules that provide for publishing public notices on a government Web site in lieu of newspaper publication.26 As mentioned previously, the EPA issued a tribal minor NSR rule in 2011 that provided for e-notice.27 Each of these rules, consistent with this rule, was justified based on the effectiveness and efficiency of Internet publication and associated cost savings.

    25 Public Law 107-347, 116 Stat. 2899. The E-Government Act of 2002 establishes in the Office of Management and Budget (OMB), an Office of Electronic Government and imposes responsibilities on various high-level government officials including heads of Federal Government agencies. The Act defines “electronic Government” as “the use by the Government of Web-based Internet applications and other information technologies, combined with processes that implement these technologies, to: (A) Enhance the access to and delivery of Government information and services to the public, other agencies, and other Government entities; or (B) bring about improvements in Government operations that may include effectiveness, efficiency, service quality, or transformation.” 44 U.S.C. 3601(3). While the Act does not mandate Internet publication of the EPA's or other agencies' public notices, it evidences the inexorable movement to broader Internet use by the federal government under congressional direction.

    26See, e.g., Consolidation of Seizure and Forfeiture Regulations, Department. of Justice, Drug Enforcement Administration, 77 FR 56093 (September 12, 2012); Internet Publication of Administrative Seizure and Forfeiture Notices, Department of Homeland Security, U.S. Customs and Border Protection, 78 FR 6027 (January 29, 2013); National Oil and Hazardous Substances Pollution Contingency Plan (NCP): Amending the NCP for Public Notices for Specific Superfund Activities, Environmental Protection Agency, 80 FR 17703 (April 2, 2015); and Medicaid Program; Methods for Assuring Access to Covered Medicaid Programs, Department of Health and Human Services, Centers for Medicare and Medicaid Services, 80 FR 67576 (November 2, 2015).

    27 76 FR 38748 (July 1, 2011).

    The EPA believes that in those instances when Internet posting is the sole notice provided, it will be fully adequate to meet the purpose for which notice is intended—to provide, to as many of the public at large as can reasonably be expected to be interested, access to important information regarding draft permits. In addition, Internet publishing provides the potential to reach unknown interested parties. Residents in a local jurisdiction may not subscribe to a local paper or happen to see a one-day posting in the legal notices section of the newspaper. At any given time, residents may be out of town and/or relying on the Internet for news. The fact that e-notices will remain on the Internet for the duration of the public comment period vastly increases the likelihood that interested parties will receive notice about draft permits. In addition, interested parties would not have the burden of traveling to a physical location to review a copy of the draft permit since that document would also be posted on the Internet. Given the widespread use of the Internet in our mobile society, the EPA believes that e-notice's reach will improve the public notice process and yield positive results. In addition, the EPA believes that e-access to draft permits will expand access to permit-related documents.

    With regard to the comment that relying solely on the Internet to provide public notice would disadvantage significant numbers of rural, elderly, low-income and/or less-educated Americans without Internet access, the EPA is sensitive to this concern but does not agree that using the Internet to provide public notice of draft permits will adversely affect these groups. As previously noted, Internet access is widely available even for those who do not own a computer. According to a 2010 University of Washington study, those living below the poverty line had the highest use of library computers, with 44 percent having reported using public library computers and Internet access during the previous year.28 We do not dispute that some individuals may continue to rely on newspapers rather than the Internet to obtain information and that there may be greater concentrations of such persons in some communities. However, even if newspapers remain an effective means for reaching some individuals, this does not take away the added benefits cited by other commenters of reaching additional individuals through the Internet and providing notice continuously during the public comment period. Furthermore, this rule does not preclude supplemental means of public notice to reach populations that do not have access to or use the Internet. Permitting authorities that are required to provide e-notice and e-access may continue to employ newspaper notice routinely as a parallel mechanism with e-notice or to supplement e-notice on a permit-by-permit basis. The same is true for permitting authorities that are not required to, but may select, e-notice as their consistent noticing method.

    28 Samantha Becker, et al., Opportunity for All: How the American Public Benefits From Internet Access at U.S. Libraries, at pages 1-2, available at http://impact.ischool.washington.edu/documents/OPP4ALL_FinalReport.pdf.

    The newspaper group claims that government Internet posting of public notices does not comport with a “long tradition” that a public notice must include four elements: The notice must be published by an independent third party, the publication must be capable of being archived at a reasonable cost, the notice must be accessible, and the notice must be verifiable. The newspaper group does not reference any statutory authority or case law to support the proposition that a public notice must include these four elements. The EPA notes that the applicable requirements for notice are encompassed in the constitutional due process standard governing public notice. The Supreme Court has held that, in providing public notice of governmental action, due process requires only that “the Government's effort be `reasonably calculated' to apprise a party of the pendency of the action.” Dusenbery v. United States, 534 U.S. 161, 170-71 (2002) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 315 (1950)). Although Dusenbery involved direct notice of an administrative forfeiture, the same due process standard applies to published notices as well. See, e.g., United States v. Young, 421 Fed. Appx. 229, 230-31, 2011 U.S. App. LEXIS 6741, at *4 (3d Cir. Apr. 1, 2011). The CAA does not specify the means by which public notice shall be provided under the programs affected by this final rule.29 However, the CAA permitting provisions do reflect a goal to provide adequate opportunities for informed public participation.30 Publication of draft permit notices via the Internet, with its widespread and broad availability within and well beyond the limits of the local jurisdiction, is clearly in compliance with this standard. The Internet's ability to provide unlimited access to public notices throughout the duration of the public comment period is, in this Internet era, much less limiting than a single day's posting in a local newspaper, which has been found to meet due process requirements.

    29See, e.g., CAA sections 165(a)(2) and 502(b)(6).

    30See, e.g., CAA section 160(5).

    The element referenced in the newspaper group's comment requiring that notice be published by an independent third party presumes that newspapers, being independent of the government, provide the public with “an extra layer of confidence” in the notice compared to the government publishing the notice itself. But this argument mistakes why newspapers were used in the past and the role they serve in the notice process. Newspapers were historically used to provide public notice because, until the Internet, there was no comparable alternative method that was “reasonably calculated” to apprise a party of the pendency of a draft permit or other subject action. It had nothing to do with their status as an “independent and neutral third party.” In fact, for these purposes, there is nothing inherently beneficial about newspapers being independent from the government given that they merely act as a vehicle for publishing notices prepared and provided by the permitting authority. The commenter has not demonstrated that newspapers generally exercise independent editorial control over the content of legal notices or classified advertisements or that newspaper staff otherwise seek to check the veracity of what the newspaper company is paid to print in these sections of its publication.

    In response to newspaper group's comments about the preservation of e-notices for future reference and verification of the e-notice posting, we note that permitting authorities have been required to keep and retain permit records (including, for example, a copy of the newspaper notice), and are required to continue to do so, in accordance with applicable record retention requirements. Therefore, we have included a best practice suggestion of evidence to include in the permit record, when e-notice and e-access are provided, to certify the date(s) of availability of the e-notice and draft permit postings on the Web site. In addition, in response to the newspaper group's claim that the EPA's Web site does not include hyperlinks to refer users to public notices, we have included a best practice suggestion that, where practicable, permitting authorities include hyperlinks on their Web site to e-notice and/or newspaper postings, postings of draft permits and other permitting actions. We also identified, in Section IV of this document, a forthcoming National Public Notices Web site that the EPA will utilize for all EPA public notices and stated that we welcome other permitting authorities to review that platform for these and other best practices. The EPA notes that the process of providing legal verification of Internet notice is dramatically streamlined when it is the government that can retrieve the required data from its own Web site, as opposed to seeking such verification from newspapers. Finally, the EPA notes that this regulatory change should correspondingly decrease the burden on newspapers of having to provide such information.

    The newspaper group claims that many newspapers have adopted a marketing strategy to publish print issues on the newspaper's Internet site. They believe the government's Internet sites will not be as user-friendly as the newspaper's dual method of print and Internet notification. They also claim that state press associations aggregate printed notices and post them on statewide public-notice Web sites. The EPA does not agree that posting draft permit notices on newspaper Web sites or press association Web sites is superior to posting them on a permitting authority's Web site. Online posting is not part of the EPA's contracts for publication of draft permit notices, so newspapers are under no obligation to make them freely available to the public online. Newspapers are likewise under no obligation to contract with state press associations for online posting of draft permit notices. Moreover, some newspaper Web sites restrict access to the full online version of the newspaper to print subscribers or those who pay for full online access. A potential interested party searching for a draft permit notice on such a Web site would either need a subscription to the newspaper that is publishing the Internet notice or would have to pay a daily access fee. The EPA believes it is unrealistic to assume that such a process would provide more effective notice than a freely available Web site that posts the desired notice as well as a copy of the draft permit, 24 hours a day, for the duration of the public comment period, in a searchable database.

    The EPA disagrees with the newspaper group's claim that the cost savings to eliminate mandatory newspaper notices is illusory. The commenter makes a valid point that there are also costs involved in maintaining a Web site and posting information on the Internet. However, the commenter did not quantify the costs or show that they are greater than the costs of newspaper advertisements. Many state regulatory agencies have established Web sites for the purpose of serving broader communication objectives. So an appropriate cost comparison for purposes of this rule is the cost of adding e-notices for specific actions to a Web site infrastructure that an agency already maintains or might create for other reasons. State regulatory agencies with Web sites have budgets to cover the costs of running a Web site for various reasons (not just permitting). To the extent that there could be some additional cost to add permit notices to a Web site, those marginal costs would be offset by the savings realized by eliminating newspaper notices. As noted previously in the summary of comments in this section, air agency commenters cited specific costs associated with newspaper notices and anticipated cost-savings after implementing e-notice. In addition, most permitting authorities commented positively about the cost and other efficiencies that e-notice provides. The EPA believes it has demonstrated earlier how providing public notice through the Internet can—and indeed already does—reach more people, more easily, and more directly, than newspaper notice. Data from permitting authorities with real-world experience implementing pubic notice requirements under the current regulations (in many cases also including e-notice) supports the EPA's conclusion that e-notice will be at least as effective, and in most cases more effective, and cheaper overall than notice by newspaper.31

    31 A survey of EPA Regional offices indicated an average newspaper advertising cost per permit (not including indirect costs) of approximately $1,034. See Memorandum: “U.S. EPA Regional Office NSR, title V and OCS Newspaper Public Notice Cost Estimates: FY 2013, 2014 and 2015” contained in this rulemaking docket. To the extent any additional costs are incurred as a result of implementing e-notice and e-access, such costs would be de minimis in comparison.

    B. Comments on Requirement That Permitting Authorities Use a Consistent Noticing Method 1. Summary of Proposal

    In lieu of newspaper publication, we proposed to require e-notice for the noticing of air permits issued by the EPA and other permitting authorities that implement the federal air permitting rules. For permits issued by permitting authorities that implement their own rules approved by the EPA, the proposed rule provided the option for permitting authorities to use either e-notice or traditional newspaper notice. However, those permitting authorities must adopt a single, consistent noticing method for all of their affected permit actions in their air rules. Thus, we proposed that where a permit agency opts to post notices of draft permits on a Web site in lieu of newspaper publication, it must post all notices to that Web site in order to ensure that the public has a consistent and reliable location for all permit notices.

    2. Brief Summary of Comments

    The majority of commenters supported the EPA's proposal to require a consistent noticing method. Several commenters indicated that it was critical for permitting authorities to use a consistent noticing method to avoid inconsistency in implementation and confusion on the part of the public in understanding how to access permit information. Several commenters also noted that it is important for permitting authorities to be allowed to use supplementary noticing methods when appropriate. Although two of these commenters indicated that they understood that the rule language, as proposed, would not preclude the use of additional, supplemental means of public notice, others seemed to be confused on this point and therefore objected to the proposed consistent noticing method requirement on the same grounds.

    Some commenters did not support the proposed requirement to use a consistent noticing method and instead favored alternative approaches or increased flexibility. One of these commenters indicated that, in some cases, traditional newspaper publication may be appropriate or necessary, and that some permitting authorities may have technical or budgetary constraints affecting their ability to provide e-notice and e-access while some may also have a statutory requirement for newspaper notice. That commenter urged the EPA to provide flexibility for a permitting authority to choose the type of notice that is appropriate for the location and circumstances of a project. Another commenter stated that forcing a state to make a formal commitment to a single form of public notice, whether electronic or print, defeats the purpose of public notice and also questioned how a state would “adopt” a “consistent noticing method.” Two commenters supported media neutral, flexible approaches based on a “method reasonably likely to provide routine and ready access to the public” as opposed to only one “consistent noticing method.” Finally, one commenter favoring a flexible approach indicated that a consistent noticing method does not work in states with diverse populations that benefit from different noticing methods, and that restrictions may inhibit effectively communicating important information to diverse communities. Further, the commenter indicated that a consistent notice approach does not allow the flexibility to transition from newspaper to e-notice.

    3. EPA Response

    The EPA is finalizing the requirement for authorities to use a consistent noticing method as proposed. We agree with commenters that believe that the random use of alternative notice methods for different permit actions could confuse the public in their efforts to access air permit public notices. In response to the negative comments received that seem to have interpreted the requirement for using a consistent noticing method for public notice of draft permit actions as precluding the use of additional noticing mechanisms, we would like to clarify that, consistent with the proposed rule, nothing in this final rule prohibits or precludes a permitting authority from using additional, supplemental forms of notice, including newspaper publication. Indeed, several state and local permitting agency commenters indicated that they already practice multiple forms of public notice on such permit actions, including both e-notice and newspaper publication and in some cases additional parallel forms of notice. Such permitting authorities that implement EPA-approved permitting rules would be required to adopt a consistent noticing method (i.e., e-notice or newspaper publication), but could continue to use any and all additional forms of notice, either consistently or on a permit-by-permit basis, as appropriate. Additionally, we would like to clarify that for permitting authorities that implement EPA-approved permitting rules, adopting rule changes and submitting a plan or program revision incorporating the final e-notice rule provisions is optional. Such air agencies may choose to continue to operate under their existing EPA-approved rules and regulations that require newspaper notification in all cases. This would qualify as a “consistent noticing method” under the revised regulations.

    Those commenters who argued for flexibility to choose the noticing method on a permit-by-permit basis have not shown how the “consistent noticing method” requirement frustrates the goals they seek to achieve through this flexibility. As discussed previously, the rule does not preclude using multiple methods of public notice, as long as the consistent method is still one of the methods used. These commenters have not shown any detrimental effect that would result to the commenters or the public from requiring permitting authorities to use one consistent method of notice for all draft permits. The benefits derived from the flexibility sought by these commenters does not eliminate the benefits that result from a consistent noticing method—ensuring that interested parties can rely on one form of notice in all cases and will not miss notices because of continuous changes in noticing methods.

    The EPA does not intend for the rule to preclude a permitting authority from subsequently changing its “consistent noticing method” on a programmatic basis. For example, if a state permitting authority follows a particular noticing method and then decides that a different form of notice would be more effective going forward, the state may revise its regulations to change its consistent method. Regarding the concern about how a state would “adopt” a consistent method, this rule makes clear that such method should be specified in EPA-approved permitting regulations for the appropriate jurisdiction.

    C. Comments on Requirement To Make E-Notice Mandatory for Federal Permit Actions 1. Summary of Proposal

    The EPA proposed that permitting authorities that implement the federal permitting rules, including the EPA and other permitting authorities that have been delegated the authority to implement the federal permitting rules, would be required to adopt e-notice as the consistent noticing method. We proposed this approach because we believe that e-notice represents the best current practice for noticing major source air permit actions. Accordingly, while the proposed rule made e-notice optional for permitting authorities implementing EPA-approved permitting rules, we did not extend the same flexibility to the EPA and other air agencies that implement the federal permitting rules.

    2. Brief Summary of Comments

    We received one comment opposing the requirement that permitting authorities implementing the federal permitting rules be required to adopt e-notice as the consistent noticing method. The commenter believed that such programs should have the same option as EPA-approved programs to choose e-notice or newspaper on a programmatic basis, allowing the permitting agency to determine the best method for communicating with the public. The same commenter further indicated that providing this option would allow for transition to e-notice at a pace consistent with available resources.

    3. EPA Response

    We are maintaining the requirement that permitting authorities implementing the federal permitting rules use e-notice as their consistent noticing method consistent with the proposal and our stated objective to implement these best practices. As discussed further in Section V of this document, the EPA did not receive any comments demonstrating that one or more affected permitting authorities have infrastructure and/or resource constraints that would render them unable to implement e-notice and e-access as of the effective date of the final rule or that implementation would cause a significant additional burden. With regard to the equity point raised by the commenter, delegated permitting authorities are, by definition, not the same as EPA-approved permitting authorities. A permitting authority that elects to administer the federal program under a delegation agreement accepts the obligation to apply the EPA's regulations.

    D. Comments on Mandatory E-Access for Programs That Use E-Notice 1. Summary of Proposal

    The EPA proposed to require that, when a permitting authority adopts the e-notice approach, it also must provide e-access. In the context of this rule, e-access means that the permitting authority must make the draft permit available electronically (i.e., on the agency's public Web site or on a public Web site identified by the permitting authority) for the duration of the public comment period.

    2. Brief Summary of Comments

    Several commenters supported e-notice with e-access and further recommended that e-access be provided using commonly available, free software. One commenter noted that e-access was important to increasing overall project awareness and providing for more effective public review and comment. Another commenter agreed with the EPA's proposed approach to limit e-access to the draft permit, and agreed that the method of making available other elements of the permit record should be left to the permitting authority to avoid potential resource constraints.

    Commenters opposed to the proposed mandatory e-access requirement generally cited resource and information technology infrastructure constraints, stating that the requirement should be for e-notice only due to the added burden associated with posting additional records without sufficient time, infrastructure or economic capability to do so. Two commenters noted that the addition of e-access makes the rule more stringent than existing law.

    3. EPA Response

    The EPA is finalizing the requirement that permitting authorities that adopt e-notice also adopt e-access consistent with the proposed rule. The EPA believes that coupling e-notice and e-access provides the affected public with ready and efficient access to both the notice and the draft permit, and that such access supports informed public participation in the permitting process. Further, the EPA believes that the additional scanning and/or uploading of the draft permit to meet the e-access requirement would be minimally burdensome. We agree with the commenters that recommended that e-access be provided using commonly available, free software, and our assessment indicates that this is the current practice of permitting authorities that provide e-access to elements of their draft permit records. Therefore, we do not believe that rule language requiring the use of commonly available, free software for providing e-access is necessary and the final rule does not contain such a requirement.

    We disagree with the comments that the requirement to provide e-access makes the noticing rules more stringent in a way with which permitting authorities are not readily capable of complying or that is contrary to law. The CAA does not prescribe the means or content of a public notice under the permitting programs addressed in the final rule. Comments received from state and local air agencies confirm that many of these agencies already provide e-access, and in some cases provide e-access to significantly more elements of the permit record than just the draft permit. Thus, we see the requirement for e-access as a logical and appropriate extension of the current requirement to make elements of the permit record available at a location. In addition, the EPA notes that the rule provides that access to documents supporting a draft permit may be provided at a physical location such as a public library. Based on comments received, the EPA believes that the e-access requirement for simply providing, at a minimum, e-access to the draft permit can be readily met by permitting authorities.

    E. Comments on Final E-Notice Rule Implementation Timeframe/Transition 1. Summary of Proposal

    The EPA did not propose a transition period for technological or other reasons, and proposed instead that once the e-notice rule becomes effective, e-notice and e-access would be required for covered actions by permitting authorities that implement the federal program rules under 40 CFR parts 52, 55, 71 and 124. This includes EPA Regions, permitting authorities that are delegated authority by the EPA to issue permits on behalf of the EPA (via a delegation agreement), and permitting authorities that have their own rules approved by the EPA in a SIP where the SIP incorporates by reference the federal program procedures and automatically updates when the EPA's rules are amended. Under this rule, these programs will be required to implement e-notice and e-access, with the exception of states that are delegated authority to issue permits under part 55.

    2. Brief Summary of Comments

    The EPA received three comments expressing concern about the proposed effective date of the final rule and the need for additional transition time for implementation. One industry association commenter stated that establishing electronic notification systems and Web sites for e-access requires careful planning, development and testing, and recommended a one year implementation timeframe. Another industry association commenter noted that the support of e-access capabilities typically necessitates substantive changes to an agency's Web site which will stretch far past the effective date of the rule. Another commenter indicated that a local air agency has several rules that mandate newspaper notice and requested a six month transition to allow for amendment of its rules.

    3. EPA Response

    The EPA is retaining the proposed effective date of the final rule. As discussed previously, the EPA did not receive any comments demonstrating that one or more affected permitting authorities have infrastructure and/or resource constraints that would render them unable to implement e-notice and e-access as of the effective date of the final rule or that implementation would cause a significant additional burden. Industry commenters only conveyed a general concern and did not identify any specific affected permitting authorities that would be unable to meet the final rule requirements in accordance with the proposed effective date. The other commenter, a local air agency with a partially-delegated permitting program, said a transition is necessary to allow for agency rule changes. However, that same commenter indicated that the agency already practices e-notice and e-access on its own Web site. Therefore, it seems this air agency would not be required to implement any changes to its rules to comply with its obligations as a delegated permitting program after the final rule becomes effective. To the extent that a delegated permitting authority must separately comply with a state requirement to provide notice via a newspaper, nothing in this rule precludes a permitting authority from continuing to comply with such a state requirement while at the same time satisfying the federal requirement for e-notice under this regulation. This rule does not preclude delegated permitting authorities from continuing to provide newspaper notice, either on a discretionary basis or as required separately by state law and/or rule. Under the amended rules, such a permitting authority should be able to transition away from mandatory newspaper noticing over a period of time without any need for a delay in realizing the benefits of e-notice for EPA-issued permits or permits issued by other air agencies that administer delegated programs.

    With regard to permitting authorities that administer EPA-approved permitting programs, this rule does not necessarily require any changes to those programs, and air agencies that wish to make changes have discretion to do so. An approved state whose rules currently require newspaper publication for all draft permits is not required by the rule to make any changes to its public notice requirements. To the extent such a state elects to replace newspaper notice with e-notice, this rule establishes no timetable for the state to make this transition. The state may continue providing newspaper notices until it can complete changes to its regulations to remove a mandatory newspaper publication requirement. Thus, with respect to rule changes by air agencies with EPA-approved programs that elect to implement e-notice alone (i.e., to no longer be required by state or local rules to publish notices in a newspaper), such agencies are free to pursue such changes on their own schedule. A delay in the effective date in this final rule is not necessary to accommodate air agencies with EPA-approved programs that may need time to adopt e-notice into their rules. The fact that a state may need time to move to e-notice if they choose that as their consistent noticing method does not justify delaying the effective date of this rule for other air agencies with EPA-approved programs that may be able to adopt e-notice more quickly.

    F. Comments on Temporary Use of Alternative Noticing Methods 1. Summary of Proposal

    In the proposed rule, the EPA noted that there may be temporary instances of Web site failure or failure in the availability for public review of the posted e-notice and the draft permit (e-access). This raises the question about what constitutes a significant interruption in time sufficient to require an extension of the public comment period or other measure(s) to cover the period of interruption. The EPA stated in the proposal that the requirement that e-notice and e-access postings be maintained “for the duration of the comment period” should not be interpreted as a requirement for uninterrupted access. However, we sought comment on the EPA's proposed approach for the phrase “for the duration of the comment period.” The EPA also solicited comments regarding whether we should include a provision in the regulations that allows a permitting authority to use an alternative noticing (and/or access) method to reach the affected public when the Web site is unavailable.

    2. Brief Summary of Comments

    Several commenters indicated that they felt temporary alternative notice methods were unnecessary. Some of these commenters recommended that the notice be extended for the duration of the downtime of the Web site. Several commenters noted that having the draft permit and public notice available on the Web site during the comment period, compared to the single day publication in the newspaper, results in a significant increase in public access to the proposed permitting action, even if Web site outages occur, and thus temporary alternative notice/access methods should not be required. Commenters also believed that any inability to provide e-notice would likely be resolved quickly and the public would have sufficient access to a draft permit during the comment period despite temporary Web site outages. Several commenters supported the EPA's position that “for the duration of the comment period” should not be interpreted as a requirement for uninterrupted access. One commenter suggested that the requirement for 30-day notice is satisfied when the notice first appears and noted that there is nothing in the statute or current regulations that requires continuous notice.

    Several commenters also favored rule requirements for temporary alternative noticing. One commenter suggested that alternative noticing criteria should be built into the rules to ensure that Web site interruptions do not have a significant impact on public's ability to review and comment or on the permitting schedule, and that it was critical that agencies have the flexibility to choose their own approach and not be left with the sole option of extending the public notice period when there is a significant Web site interruption. Two commenters suggested that a definition of “the duration of the public comment period” should be added to the rule.

    3. EPA Response

    The EPA is not finalizing any specific requirements regarding temporary alternative noticing of permit actions to address the temporary unavailability of the notice and/or draft permit due to Web site outages, nor are we specifically defining “the duration of the public comment period.” We do not believe that, in general, there are, or will be, significant issues with e-notice and e-access availability on Web sites used by permitting authorities, and we believe that permitting authorities are in the best position to determine the appropriate methods to address any situations that may arise on specific permitting actions. In addition, we agree that there is no statutory requirement for continuous notice of a draft permit during the entire duration of the comment period. While there is significant added value in posting a notice throughout the comment period, we do not see a need for the EPA to define “the duration of the public comment period” as a requirement for uninterrupted access. We support the flexibility for the permitting authority to enact measures to address Web site unavailability, including possibly extending the public comment period. We have addressed this in the “best practices” in Section IV of this document.

    G. Comments on Documentation/Certification of E-Notices 1. Summary of Proposal

    The proposed rule did not specifically address documenting and/or certifying the posting of an e-notice to a Web site for the duration of the comment period. However, the EPA received comments on this topic.

    2. Brief Summary of Comments

    Several commenters supported the need for documentation and/or certification of the e-notice in the administrative record for the draft permit, further stating that it is critical that states document this information in the event the decision is challenged. Two commenters suggested that the EPA could address this issue in “best practices” and provided specific examples.

    3. EPA Response

    We agree with commenters that it is important for permitting authorities to establish a record that they have provided notice of a draft permit and the opportunity for public comment, but we do not believe a specific certification requirement is necessary. EPA rules have not required a certification of public notice and nothing in the CAA requires it. The EPA has addressed documentation of e-notices in the “best practices” in Section IV of this document. We support flexibility for permitting authorities to comply with their specific statutory, policy or regulatory provisions for e-notice and e-access and to ensure that there is adequate documentation of the notice in the administrative record for the draft permit.

    H. Additional Guidance on E-Notice and E-Access for Minor NSR Permit Actions 1. Summary of Proposal

    In the proposed rule, we indicated our intent to clarify that the EPA's 2012 Memorandum's interpretation of prominent advertisement in 40 CFR 51.161(b)(3) as media neutral also applies to 40 CFR 51.161(b)(1). More specifically, we proposed that allowing e-access (i.e., Web site access) to the information submitted by the owner or operator and access to the agency's analysis of the effect on air quality would satisfy the requirement that this information be available for public inspection in at least one location in the area affected. We believe this approach is consistent with the EPA's 2012 Memorandum with respect to allowing the use of electronic and other methods to provide notice of minor NSR actions, and it is reasonable, for reasons discussed in this preamble, to allow e-access to permit documents for major NSR permits.

    In addition, in issuing the EPA's 2012 Memorandum, the EPA indicated that our interpretation of the term prominent advertisement in 40 CFR 51.161(b)(3) applies only to minor sources and not to synthetic minor sources.32 Given the statement in the memorandum, which raised uncertainty about the flexibility to use media neutral methods for synthetic minor NSR permits, the EPA has now determined that it is not appropriate to exclude such synthetic minor permits in this regard, and the Agency proposal clarified that the limitation established in Footnote 1 of the EPA's 2012 Memorandum is no longer appropriate.

    32 Synthetic minor sources are those sources that have the potential to emit regulated NSR pollutants at or above the major source thresholds, but that have taken enforceable limitations to restrict their potential to emit below such thresholds.

    2. Brief Summary of Comments

    All commenters supported the extension of the interpretation in the EPA's 2012 Memorandum to synthetic minor NSR permits. One commenter recommended that the EPA either propose changes to 40 CFR 51.161(b)(1) similar to what was proposed for the other sections of the CFR in the rule proposal or expand the EPA's existing interpretation of “media neutral” notification for minor NSR programs to specifically indicate that information available electronically meets the requirements of 40 CFR 51.161(b)(1).

    3. EPA Response

    The EPA agrees that we should revise the text of 40 CFR 51.161(b)(1) similar to what was proposed for other sections of the CFR. This better communicates our view that Internet posting of this information is sufficient to meet the subject records availability requirements under the existing rule language. The EPA does not agree, however, that it needs to propose the revised text before adopting it in this final rule. The proposed rule provided adequate notice of the EPA's intent to clarify that the requirements of 40 CFR 51.161(b)(1) are satisfied by making the information available electronically. We received no adverse comments on this point. The text the EPA is adding to 40 CFR 51.161(b)(1) is similar to the text the EPA proposed to add to 40 CFR 51.166(q)(2)(ii). We received no adverse comments regarding that text. Therefore, in this final rule, the EPA is revising 40 CFR 51.161(b)(1) to add the following: “This requirement may be met by making these materials available at a physical location or on a public Web site identified by the State or local agency.”

    This final rule preamble also serves to extend the EPA's media neutral interpretation of prominent advertisement under 40 CFR 51.161 to synthetic minor permits. The EPA will attach a notification to the electronic version of the EPA's 2012 Memorandum indicating that the media neutral interpretation also applies to synthetic minor permits.

    VI. Environmental Justice Considerations

    The 1990 CAA Amendments generally require that the EPA or the permitting authority provide adequate procedural opportunities for the general public to have informed participation in the air permitting process in the areas affected by a proposed permit. These areas include EJ communities.

    The effectiveness of noticing methods for reaching underserved and EJ communities is a substantial concern to the EPA. A 2011 report issued by the NEJAC found that publication in the legal section of a regional newspaper is antiquated and ineffective, and is not ideal for providing notice to affected EJ communities. Regarding public participation, the report recommends the following to the EPA: “To ensure meaningful public participation, the public notice and outreach process must include direct communication in appropriate languages through telephone calls and mailings to EJ and tribal communities, press releases, radio announcements, electronic and regular mail, Web site postings and the posting of signs.” 33 Thus, the NEJAC specifically listed Web site postings as a method to ensure meaningful public participation. Furthermore, several comments received on the proposed rule, including comments from air agencies with practical experience implementing e-notice and e-access, strongly supported these mechanisms as more effective in providing public notice of permitting actions to EJ communities. However, notwithstanding our conclusion that e-notice and e-access are a viable and effective means of making information widely available to the public, including EJ communities, we strongly encourage permitting authorities to provide additional notice and access to the draft permit (and other elements of the administrative records for which they choose to provide e-access) where they determine that a specific jurisdiction or population would be better served with supplemental notice in the newspaper and/or another noticing method, such as those suggested by the NEJAC, and access to elements of the administrative record (for which e-access was provided) at a physical location.

    33 “Enhancing Environmental Justice in EPA Permitting Programs,” National Environmental Justice Advisory Council (April, 2011), pages 20-21, available at https://www.epa.gov/sites/production/files/2015-02/documents/ej-in-permitting-report-2011.pdf.

    VII. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant action and was, therefore, not submitted to the OMB for review.

    B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden under the PRA. This final rule revises regulations to address public noticing method requirements for draft permits for certain sources of air pollution. It is important to note that the final rule revisions do not require air agencies that implement the permitting program through an EPA-approved title V program or SIP to use e-notice. These agencies may continue to provide notice by newspaper publication or they may adopt e-notice as their consistent notification method. Only in the latter case would an air agency be required to revise the title V program rules or undertake a SIP revision. For EPA-delegated agencies, and for agencies that incorporate by reference the federal rules and their rules automatically update, no rulemaking action is required by the agency to adopt the e-notice requirements. However, if any of these agencies decides to retain newspaper publication as their consistent notification method, they could request removal of delegation, revise their program rules consistent with the rules for state programs (e.g., 40 CFR 51.166), and undertake a SIP revision. In addition, an agency delegated a 40 CFR part 71 program may need to update its delegation agreement. An air agency delegated the 40 CFR part 71 program may have to choose between implementing e-notice, obtaining approval for implementing a 40 CFR part 70 program, or relinquishing their title V program. To the extent that a SIP revision or a title V program revision is necessary to effect the changes being proposed, we believe that the burden to revise SIPs is already accounted for under the PSD and NNSR information collection request (ICR) No. 1230.29 (OMB Control No. 2060-0003) and the burden to revise title V programs is included in ICR Nos. 1587.13 and 1713.11 (OMB Control Nos. 2060-0243 and 2060-0336).

    This action has no burden on industry sources since permitting authorities are responsible for the noticing of permits. Therefore, the final rule revisions do not contain any information collection activities.

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements directly on small entities. This final rule revises regulations to address public noticing method requirements for draft permits for certain sources of air pollution.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded federal mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly affect small governments. This final action imposes no enforceable duty on any state, local or tribal governments, or the private sector.

    E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

    F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This final action does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effect on tribal governments, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action.

    G. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

    H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.

    I. National Technology Transfer and Advancement Act

    The final rulemaking does not involve technical standards.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. The results of this evaluation are contained in Section VI of this document titled “Environmental Justice Considerations.”

    K. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule report to each House of 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).

    L. Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review of any nationally applicable regulation, or any action the Administrator “finds and publishes” as based on a determination of nationwide scope or effect must be filed in the United States Court of Appeals for the District of Columbia Circuit within 60 days of the date the promulgation, approval, or action appears in the Federal Register. This final rule is nationally applicable, as it revises the rules for public notice under the minor NSR, PSD, NNSR, title V and OCS permitting programs in 40 CFR 51.161, 40 CFR 51.166, 40 CFR 51.165, 40 CFR 52.21, 40 CFR part 124, 40 CFR part 70, 40 CFR part 71 and 40 CFR part 55. As a result, petitions for review of this rule must be filed in the United States Court of Appeals for the District of Columbia Circuit within December 19, 2016. CAA section 307(d)(7)(B) further provides that “[o]nly an objection to a rule or procedure that was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.” This section also provides a mechanism for the EPA to reconsider the rule “[i]f the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, EPA WJC, 1200 Pennsylvania Ave. NW., Washington, DC 20460, with a copy to all person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section of this final rule, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave. NW., Washington, DC 20460. Filing a petition for reconsideration by the Administrator of this final action 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 must be filed, and shall not postpone the effectiveness of this action.

    VIII. Statutory Authority

    The statutory authority for this action is provided by 23 U.S.C. 101; 42 U.S.C. 6901, et seq.; 42 U.S.C. 300f, et seq. 33 U.S.C. 1251, et seq.; 42 U.S.C. 7401, et seq.

    List of Subjects 40 CFR Part 51

    Environmental protection, Administrative practice and procedure, Air pollution control, Reporting and recordkeeping requirements.

    40 CFR Part 52

    Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Reporting and recordkeeping requirements.

    40 CFR Part 55

    Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Reporting and recordkeeping requirements.

    40 CFR Part 70

    Environmental protection, Administrative practice and procedure, Air pollution control, Reporting and recordkeeping requirements.

    40 CFR Part 71

    Environmental protection, Administrative practice and procedure, Air pollution control, Reporting and recordkeeping requirements.

    40 CFR Part 124

    Environmental protection, Administrative practice and procedure, Air pollution control, Reporting and recordkeeping requirements.

    Dated: October 5, 2016. Gina McCarthy, Administrator.

    For the reasons stated in the preamble, title 40, chapter I of the Code of Federal Regulations is amended as follows:

    PART 51—REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF IMPLEMENTATION PLANS 1. The authority citation for part 51 continues to read as follows: Authority:

    23 U.S.C. 101; 42 U.S.C. 7401-7671q.

    Subpart I—Review of New Sources and Modifications 2. Section 51.161 is amended by revising paragraph (b)(1) to read as follows:
    § 51.161 Public availability of information.

    (b) * * *

    (1) Availability for public inspection in at least one location in the area affected of the information submitted by the owner or operator and of the State or local agency's analysis of the effect on air quality. This requirement may be met by making these materials available at a physical location or on a public Web site identified by the State or local agency;

    3. Section 51.165 is amended by adding paragraph (i) to read as follows:
    § 51.165 Permit requirements.

    (i) Public participation requirements. The reviewing authority shall notify the public of a draft permit by a method described in either paragraph (i)(1) or (2) of this section. The selected method, known as the “consistent noticing method,” shall comply with the public participation procedural requirements of § 51.161 of this chapter and be used for all permits issued under this section and may, when appropriate, be supplemented by other noticing methods on individual permits.

    (1) Post the information in paragraphs (i)(1)(i) through (iii) of this section, for the duration of the public comment period, on a public Web site identified by the reviewing authority.

    (i) A notice of availability of the draft permit for public comment;

    (ii) The draft permit; and

    (iii) Information on how to access the administrative record for the draft permit.

    (2) Publish a notice of availability of the draft permit for public comment in a newspaper of general circulation in the area where the source is located. The notice shall include information on how to access the draft permit and the administrative record for the draft permit.

    4. Section 51.166 is amended by revising paragraphs (q)(2)(ii), (iii), (vi), and (viii) to read as follows:
    § 51.166 Prevention of significant deterioration of air quality.

    (q) * * *

    (2) * * *

    (ii) Make available in at least one location in each region in which the proposed source would be constructed, a copy of all materials the applicant submitted, a copy of the preliminary determination, and a copy or summary of other materials, if any, considered in making the preliminary determination. This requirement may be met by making these materials available at a physical location or on a public Web site identified by the reviewing authority.

    (iii) Notify the public, by advertisement in a newspaper of general circulation in each region in which the proposed source would be constructed, of the application, the preliminary determination, the degree of increment consumption that is expected from the source or modification, and of the opportunity for comment at a public hearing as well as through written public comment. Alternatively, these notifications may be made on a public Web site identified by the reviewing authority. However, the reviewing authority's selected notification method (i.e., either newspaper or Web site), known as the “consistent noticing method,” shall be used for all permits subject to notice under this section and may, when appropriate, be supplemented by other noticing methods on individual permits. If the reviewing authority selects Web site notice as its consistent noticing method, the notice shall be available for the duration of the public comment period and shall include the notice of public comment, the draft permit, information on how to access the administrative record for the draft permit and how to request and/or attend a public hearing on the draft permit.

    (vi) Consider all written comments submitted within a time specified in the notice of public comment and all comments received at any public hearing in making a final decision on the approvability of the application. The reviewing authority shall make all comments available for public inspection at the same physical location or on the same Web site where the reviewing authority made available preconstruction information relating to the proposed source or modification.

    (viii) Notify the applicant in writing of the final determination and make such notification available for public inspection at the same location or on the same Web site where the reviewing authority made available preconstruction information and public comments relating to the proposed source or modification.

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 5. The authority citation for part 52 continues to read as follows: Authority:

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

    Subpart A—General Provisions 6. Section 52.21 is amended by revising paragraphs (q) and (w)(4) to read as follows:
    § 52.21 Prevention of significant deterioration of air quality.

    (q) Public participation. The administrator shall follow the applicable procedures of 40 CFR part 124 in processing applications under this section.

    (w) * * *

    (4) If the Administrator rescinds a permit under this paragraph, the Administrator shall post a notice of the rescission determination on a public Web site identified by the Administrator within 60 days of the rescission.

    PART 55—OUTER CONTINENTAL SHELF AIR REGULATIONS 7. The authority citation for part 55 continues to read as follows: Authority:

    Section 328 of the Clean Air Act (42 U.S.C. 7401, et seq.) as amended by Public Law 101-549.

    8. Section 55.5 is amended by revising paragraphs (f)(1)(i) and (ii) to read as follows:
    § 55.5 Corresponding onshore area designation.

    (f) * * *

    (1) * * *

    (i) Make available, in at least one location in the NOA and in the area requesting COA designation, which may be a public Web site identified by the Administrator, a copy of all materials submitted by the requester, a copy of the Administrator's preliminary determination, and a copy or summary of other materials, if any, considered by the Administrator in making the preliminary determination; and

    (ii) Notify the public, by prominent advertisement in a newspaper of general circulation in the NOA and the area requesting COA designation or on a public Web site identified by the Administrator, of a 30-day opportunity for written public comment on the available information and the Administrator's preliminary COA designation.

    9. Section 55.6 is amended by revising paragraph (a)(3) to read as follows:
    § 55.6 Permit requirements.

    (a) * * *

    (3) Administrative procedures and public participation. The Administrator will follow the applicable procedures of 40 CFR part 71 or 40 CFR part 124 in processing applications under this part. When using 40 CFR part 124, the Administrator will follow the procedures used to issue Prevention of Significant Deterioration (“PSD”) permits.

    10. Section 55.7 is amended by revising paragraphs (f)(4)(ii) and (iii) to read as follows:
    § 55.7 Exemptions.

    (f) * * *

    (4) * * *

    (ii) Make available, in at least one location in the COA and NOA, which may be a public Web site identified by the Administrator or delegated agency, a copy of all materials submitted by the requester, a copy of the preliminary determination, and a copy or summary of other materials, if any, considered in making the preliminary determination.

    (iii) Notify the public, by prominent advertisement in a newspaper of general circulation in the COA and NOA or on a public Web site identified by the Administrator or delegated agency, of a 30-day opportunity for written public comment on the information submitted by the owner or operator and on the preliminary determination.

    PART 70—STATE OPERATING PERMIT PROGRAMS 11. The authority citation for part 70 continues to read as follows: Authority:

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

    12. Section 70.7 is amended by revising paragraphs (h)(1) and (2) to read as follows:
    § 70.7 Permit issuance, renewal, reopenings, and revisions.

    (h) * * *

    (1) Notice shall be given by one of the following methods: By publishing the notice in a newspaper of general circulation in the area where the source is located (or in a State publication designed to give general public notice) or by posting the notice, for the duration of the public comment period, on a public Web site identified by the permitting authority, if the permitting authority has selected Web site noticing as its “consistent noticing method.” The consistent noticing method shall be used for all draft permits subject to notice under this paragraph. If Web site noticing is selected as the consistent noticing method, the draft permit shall also be posted, for the duration of the public comment period, on a public Web site identified by the permitting authority. In addition, notice shall be given to persons on a mailing list developed by the permitting authority using generally accepted methods (e.g., hyperlink sign-up function or radio button on an agency Web site, sign-up sheet at a public hearing, etc.) that enable interested parties to subscribe to the mailing list. The permitting authority may update the mailing list from time to time by requesting written indication of continued interest from those listed. The permitting authority may delete from the list the name of any person who fails to respond to such a request within a reasonable timeframe. The permitting authority may use other means to provide adequate notice to the affected public;

    (2) The notice shall identify the affected facility; the name and address of the permittee; the name and address of the permitting authority processing the permit; the activity or activities involved in the permit action; the emissions change involved in any permit modification; the name, address, and telephone number of a person (or an email or Web site address) from whom interested persons may obtain additional information, including copies of the permit draft, the application, all relevant supporting materials, including those set forth in § 70.4(b)(3)(viii) of this part, and all other materials available to the permitting authority (except for publicly-available materials and publications) that are relevant to the permit decision; a brief description of the comment procedures required by this part; and the time and place of any hearing that may be held, including a statement of procedures to request a hearing (unless a hearing has already been scheduled);

    PART 71—FEDERAL OPERATING PERMIT PROGRAMS 13. The authority citation for part 71 continues to read as follows: Authority:

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

    Subpart A—Operating Permits 14. Section 71.4 is amended by revising paragraph (g) to read as follows:
    § 71.4 Program implementation.

    (g) Public notice of part 71 programs. In taking action to administer and enforce an operating permits program under this part, the Administrator will publish a notice in the Federal Register informing the public of such action and the effective date of any part 71 program as set forth in § 71.4(a), (b), (c), or (d)(1)(ii). The publication of this part in the Federal Register on July 1, 1996 serves as the notice for the part 71 permit programs described in § 71.4(d)(1)(i) and (e). The EPA will also publish a notice in the Federal Register of any delegation of a portion of the part 71 program to a State, eligible Tribe, or local agency pursuant to the provisions of § 71.10. In addition to notices published in the Federal Register under this paragraph (g), the Administrator will, to the extent practicable, post a notice on a public Web site identified by the Administrator of the part 71 program effectiveness or delegation, and will send a letter to the Tribal governing body for an Indian Tribe or the Governor (or his or her designee) of the affected area to provide notice of such effectiveness or delegation.

    15. Section 71.11 is amended by revising paragraphs (d)(3)(i)(E), (d)(3)(ii), and (d)(4)(i)(G) to read as follows:
    § 71.11 Administrative record, public participation, and administrative review.

    (d) * * *

    (3) * * *

    (i) * * *

    (E) Persons on a mailing list, including those who request in writing to be on the list. As part of this requirement, the permitting authority shall notify the public of the opportunity to be put on the mailing list by way of generally accepted methods (e.g., hyperlink sign-up function or radio button on an agency Web site, sign-up sheet at a public hearing, etc.) that enable interested parties to subscribe to the mailing list. The permitting authority may update the mailing list from time to time by requesting written indication of continued interest from those listed. The permitting authority may delete from the list the name of any person who fails to respond to such a request within a reasonable timeframe.

    (ii) By posting a notice on a public Web site identified by the permitting authority for the duration of the public comment period. The notice shall be consistent with paragraph (d)(4)(i) of this section and be accompanied by a copy of the draft permit.

    (4) * * *

    (i) * * *

    (G) The physical location and/or Web site address of the administrative record, the times at which the record will be open for public inspection, and a statement that all data submitted by the applicant are available as part of the administrative record; and

    Subpart B—Permits for Early Reductions Sources 16. Section 71.27 is amended by revising paragraphs (d)(3)(i)(E), (d)(3)(ii), and (d)(4)(i)(F) and (G) and adding paragraph (d)(4)(i)(H) to read as follows:
    § 71.27 Public participation and appeal.

    (d) * * *

    (3) * * *

    (i) * * *

    (E) Persons on a mailing list, including those who request in writing to be on the list. As part of this requirement, the Administrator shall notify the public of the opportunity to be put on the mailing list by way of generally accepted methods (e.g., hyperlink sign-up function or radio button on an agency Web site, sign-up sheet at a public hearing, etc.) that enable interested parties to subscribe to the mailing list. The Administrator may update the mailing list from time to time by requesting written indication of continued interest from those listed. The Administrator may delete from the list the name of any person who fails to respond to such a request within a reasonable timeframe;

    (ii) By posting a notice on a public Web site identified by the Administrator for the duration of the public comment period. The notice shall be consistent with paragraph (d)(4)(i) of this section and be accompanied by a copy of the draft permit.

    (4) * * *

    (i) * * *

    (F) A brief description of the comment procedures required by paragraphs (e) and (f) of this section and the time and place of any hearing that will be held, including a statement of procedures to request a hearing (unless a hearing has already been scheduled) and other procedures by which the public may participate in the final permit decision;

    (G) Any additional information considered necessary or proper; and

    (H) The physical location and/or Web site address of the administrative record, the times at which the record will be open for public inspection and a statement that all data submitted by the applicant are available as part of the administrative record.

    PART 124—PROCEDURES FOR DECISIONMAKING 17. The authority citation for part 124 continues to read as follows: Authority:

    Resource Conservation and Recovery Act, 42 U.S.C. 6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300f et seq.; Clean Water Act, 33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 7401 et seq.

    Subpart A—General Program Requirements 18. Section 124.10 is amended by adding paragraph (c)(2)(iii) to read as follows:
    § 124.10 Public notice of permit actions and public comment period.

    (c) * * *

    (2) * * *

    (iii) For PSD permits:

    (A) In lieu of the requirement in paragraphs (c)(1)(ix)(B) and (C) of this section regarding soliciting persons for “area lists” and notifying the public of the opportunity to be on a mailing list, the Director may use generally accepted methods (e.g., hyperlink sign-up function or radio button on an agency Web site, sign-up sheet at a public hearing, etc.) that enable interested parties to subscribe to a mailing list. The Director may update the mailing list from time to time by requesting written indication of continued interest from those listed. The Director may delete from the list the name of any person who fails to respond to such a request within a reasonable timeframe.

    (B) In lieu of the requirement in paragraph (c)(2)(i) of this section to publish a notice in a daily or weekly newspaper, the Director shall notify the public by posting the following information, for the duration of the public comment period, on a public Web site identified by the Director: A notice of availability of the draft permit for public comment (or the denial of the permit application), the draft permit, information on how to access the administrative record, and information on how to request and/or attend a public hearing on the draft permit.

    (C) In lieu of the requirement in paragraph (d)(1)(vi) of this section to specify a location of the administrative record for the draft permit, the Director may post the administrative record on an identified public Web site.

    [FR Doc. 2016-24911 Filed 10-17-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2015-0522; FRL-9954-21-Region 5] Air Plan Approval; Ohio; Removal of Gasoline Vapor Recovery Requirements AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving, as a revision under the Clean Air Act (CAA) to the Ohio state implementation plan (SIP), submittals from the Ohio Environmental Protection Agency (Ohio EPA) dated July 15, 2015, and February 29, 2016. The revision addresses the state's Stage II vapor recovery (Stage II) program for the Cleveland, Cincinnati, and Dayton ozone areas in Ohio. The revision removes Stage II requirements for the three areas as a component of the Ohio ozone SIP. The revision also includes a demonstration that addresses emission impacts associated with the removal of the Stage II program. EPA proposed to approve the state's submittal on June 30, 2016, and received no comments.

    DATES:

    This final rule is effective on November 17, 2016.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2015-0522. All documents in the docket are listed in the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., 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 through http://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Francisco J. Acevedo, Mobile Source Program Manager, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6061, [email protected].

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

    I. What is being addressed by this document?

    On June 30, 2016, at 81 FR 42597, EPA proposed to approve amendments to OAC 3745-21-09 (DDD) that remove Stage II requirements from the Ohio ozone SIP and allow gasoline dispensing facilities currently implementing Stage II in the Cleveland, Cincinnati and Dayton areas to decommission their systems by 2017. The revision included amended copies of OAC 3745-21-09 (DDD), as adopted on April 29, 2013, and January 17, 2014; a summary of Ohio-specific calculations, based on EPA guidance, used to calculate program benefits and demonstrate widespread use of onboard refueling vapor recovery (ORVR) in Ohio; and a CAA section 110(l) demonstration that includes documentation that analyzes the period, 2013-2017, when Stage II requirements were waived in Ohio but widespread use of ORVR has not yet occurred.

    II. What comments did we receive on the proposed SIP revision?

    EPA provided a 30-day review and comment period on the proposed action. The comment period closed on August 1, 2016. EPA received no comments.

    III. What action is EPA taking?

    EPA is approving revisions to the Ohio ozone SIP submitted by the state dated July 15, 2015, and February 29, 2016, for the state's Stage II program in Ohio. EPA finds that the revisions will not interfere with any applicable requirement concerning attainment, reasonable further progress or any other applicable CAA requirement.

    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 Ohio 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 SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1 EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 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 Order 12866 (58 FR 51735, October 4, 1993);

    • 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 December 19, 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 oxides, Ozone, Volatile organic compounds.

    Dated: October 5, 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 § 52.1870 the table in paragraph (c) is amended under “Chapter 3745-21 Carbon Monoxide, Ozone, Hydrocarbon Air Quality Standards, and Related Emission Requirements” by revising the entry for 3745-21-09 “Control of Emissions of Volatile Organic Compounds from Stationary Sources and Perchloroethylene from Dry Cleaning Facilities” to read as follows:
    § 52.1870 Identification of plan.

    (c) * * *

    EPA-Approved Ohio Regulations Ohio citation Title/subject Ohio effective date EPA approval date Notes *         *         *         *         *         *         * Chapter 3745-21 Carbon Monoxide, Ozone, Hydrocarbon Air Quality Standards, and Related Emission Requirements *         *         *         *         *         *         * 3745-21-09 Control of Emissions of Volatile Organic Compounds from Stationary Sources and Perchloroethylene from Dry Cleaning Facilities 1/17/2014 10/18/2016, [Insert Federal Register citation] except (U)(1)(h). *         *         *         *         *         *         *
    [FR Doc. 2016-24912 Filed 10-17-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2015-0558; FRL-9951-78] Metaldehyde; Pesticide Tolerances AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes tolerances with regional registration for residues of metaldehyde in or on multiple commodities which are identified and discussed later in this document. Interregional Research Project Number 4 (IR-4) requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).

    DATES:

    This regulation is effective October 18, 2016. Objections and requests for hearings must be received on or before December 19, 2016, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2015-0558, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW., Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Michael Goodis, Acting Director, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. General Information A. Does this action apply to me?

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

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

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

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2015-0558 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before December 19, 2016. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2015-0558, by one of the following methods:

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

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

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

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

    II. Summary of Petitioned-For Tolerance

    In the Federal Register of Wednesday, September 9, 2015 (80 FR 54257) (FRL-9933-26), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 5E8377) by Interregional Research Project Number 4 (IR-4), IR-4 Headquarters, 500 College Road East, Suite 201 W., Princeton, NJ 08540. The petition requested that 40 CFR 180.523 be amended by establishing tolerances for residues of the molluscicide metaldehyde, 2,4,6,8-tetramethyl-1,3,5,7-tetroxocane, in or on beet, garden, roots at 0.05 parts per million (ppm); beet, garden, tops at 0.08 ppm; hop, dried cones at 0.05 ppm; rutabaga, roots at 0.05 ppm; turnip, greens (tops) at 0.08 ppm; turnip, roots at 0.05 ppm; wheat, forage at 0.05 ppm; wheat, grain at 0.05 ppm; wheat, hay at 0.05 ppm and wheat, straw at 0.05 ppm. That document referenced a summary of the petition prepared by Lonza, Inc., the registrant, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

    Based upon review of the data supporting the petition, EPA has made certain modifications to the petitioned-for crop tolerances. The reason for these changes are explained in Unit IV.C.

    III. Aggregate Risk Assessment and Determination of Safety

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

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

    A. Toxicological Profile

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

    The toxicity profile of metaldehyde shows that the principal toxic effects are clinical signs of neurotoxicity. The dog is the most sensitive species for the neurotoxic effects. The nervous system effects observed in subchronic and chronic oral toxicity studies include: (1) Neurotoxic signs, i.e., ataxia; tremor; twitching; salivation; emesis; and rapid respiration in dogs and maternal rats; and (2) neuropathology, i.e., limb paralysis, spinal cord necrosis, and hemorrhage in maternal rats.

    The liver is a target organ following subchronic and chronic oral exposure to metaldehyde as evidenced by increased liver weight, increased incidence of liver lesions, i.e., hepatocellular necrosis, hepatocellular hypertrophy, inflammation, and an increased incidence of hepatocellular adenomas/carcinomas in female rats and hepatocellular adenomas in both sexes of mice. The testes and prostate are also target organs following subchronic and chronic exposure as evidenced by atrophy of both organs in dogs.

    Developmental toxicity was not observed in the rat or rabbit developmental toxicity studies. Maternal toxicity was not observed in the rabbit, although maternal toxicity was observed in the rat, as evidenced by clinical signs including ataxia, tremors, and twitching at the highest dose tested (HDT). In the rat reproductive toxicity study, mortality and clinical signs, i.e., limb paralysis, spinal cord necrosis and hemorrhage were observed in the maternal animals, and the effects on the offspring consisted of decreased pup body weight and body weight gains. Reproductive toxicity was not observed.

    In chronic feeding studies in mice and rats, benign liver tumors were seen in both sexes of mice and in female rats. The Agency has determined that quantification of risk using a non-linear Reference Dose (RfD) approach for metaldehyde will adequately account for all chronic toxicity, including carcinogenicity, that could result from exposure to metaldehyde. That conclusion is based on the following considerations: (1) The tumors found are commonly seen in the mouse; (2) the liver tumors (adenomas) in both species were benign; (3) metaldehyde is not mutagenic; (4) no carcinogenic response was seen in the male rat; (5) incidence of adenomas at the high-dose in the female rat was within the historical control range of the testing lab; and (6) both the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the chronic rat study on which the chronic RfD/population-adjusted dose (PAD) was based are well below the dose at which adenomas were seen.

    Specific information on the studies received and the nature of the adverse effects caused by metaldehyde as well as the NOAEL and the LOAEL from the toxicity studies can be found at http://www.regulations.gov in document “Metaldehyde; Human Health Risk Assessment for Proposed New Uses on Garden Beets, Hops, Rutabaga, Turnips and Wheat with Regional Registration in the Pacific Northwest,” in docket ID number EPA- HQ-OPP-2015-0558.

    B. Toxicological Points of Departure/Levels of Concern

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

    A summary of the toxicological endpoints for metaldehyde used for human risk assessment is discussed in Unit III.B. of the final rule published in the Federal Register of November 27, 2013 (78 FR 70864) (FRL-9388-8).

    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to metaldehyde, EPA considered exposure under the petitioned-for tolerances as well as all existing metaldehyde tolerances in 40 CFR 180.523. EPA assessed dietary exposures from metaldehyde in food as follows:

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

    Such effects were identified for metaldehyde. In estimating acute dietary exposure, EPA used the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID), Version 3.16, which incorporates 2003-2008 food consumption data from the U.S. Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). As to residue levels in food, EPA assumed tolerance-level residues for all commodities and 100 percent crop treated (PCT). In addition, the Agency assumed processing factors to be 1.0 for all commodities except for tomato, dried; tomato, juice; cranberry, juice; and high fructose corn syrup; for these commodities, DEEM default processing factors were used.

    ii. Chronic exposure. In conducting the chronic dietary exposure assessment EPA used the DEEM-FCID, Version 3.16, which incorporates 2003-2008 food consumption data from the USDA's, NHANES/WWEIA. As to residue levels in food, EPA assumed tolerance-level residues for all commodities and 100 PCT. Processing factors were assumed to be 1.0 for all commodities except for tomato, dried; tomato, juice; cranberry, juice; and high fructose corn syrup; for these commodities, DEEM default processing factors were used.

    iii. Cancer. Based on the data summarized in Unit III.A., EPA concluded that quantification of risk using a non-linear RfD approach will adequately account for all chronic toxicity, including carcinogenicity. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk was not conducted.

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

    2. Dietary exposure from drinking water.

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

    Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of metaldehyde for acute exposures are estimated to be 205 parts per billion (ppb) for surface water and 1880 ppb for ground water. Chronic exposures for non-cancer assessments are estimated to be 136 ppb for surface water and 915 ppb for ground water.

    For acute dietary risk assessment, the full distribution of ground water concentrations from the PRZM-GW model was used to assess the contribution from drinking water.

    For chronic dietary risk assessment, the water concentration of value 915 ppb was used to assess the contribution from drinking water.

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

    Metaldehyde is currently registered for the following uses that could result in residential exposures: Residential ornamentals and lawn/turf applications. EPA assessed residential exposure using the following assumptions and exposure factors: For adult residential handlers, EPA conducted a short-term exposure assessment of metaldehyde for adults based on the inhalation route, incorporating the maximum labeled application rate, and unit exposure values and estimates for area treated/amount handled taken from the 2012 Residential Standard Operating Procedures (SOPs). The scenario resulting in the highest adult exposure in a residential setting was hand dispersal of granules, which was used in the short-term aggregate assessment. Additional scenarios assessed included; loading and applying distinct metaldehyde product types, i.e., liquid ready-to-use products applied manually via pressurized hand wands, hose-end sprayers, and sprinkler cans, as well as applying granular products via push-type rotary spreaders, belly grinders, spoons, cups, hands, and shaker cans.

    For children, the highest estimated metaldehyde exposure resulted from post-application incidental oral exposures of short-term duration from hand-to-mouth and object-to-mouth contact with treated turf, and short- and intermediate-term exposures from treated soil. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

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

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

    D. Safety Factor for Infants and Children

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

    2. Prenatal and postnatal sensitivity. Developmental toxicity was not observed in the rat or rabbit developmental toxicity studies and no maternal toxicity observed in the rabbit. Maternal toxicity was observed in the rat, as evidenced by clinical signs, i.e., ataxia, tremors, and twitching, however these effects were observed only at the highest dose tested. In the rat reproductive toxicity study, mortality and clinical signs, i.e., limb paralysis, spinal cord necrosis and hemorrhage were observed in the maternal animals, and the effects on the offspring consisted of decreased pup body weight and body weight gains. Reproductive toxicity was not observed.

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

    i. The toxicity database for metaldehyde is complete;

    ii. Although there are indications of neurotoxicity from exposure to metaldehyde, there are clear NOAELs/LOAELS for these effects, and Points of Departure selected for risk assessment are protective for these effects. EPA has determined that the acute and developmental neurotoxicity studies are not needed, nor are additional uncertainty factors (UFs) necessary to account for neurotoxicity. There were no indications of neurotoxic effects in developing rats or rabbits in either the developmental or reproductive studies. Although there were some effects in adult rats, those effects occurred at doses much higher than in the dog study. The dog is the more sensitive species for neurotoxic effects and points of departure (30 mg/kg/day and 10 mg/kg/day) are based on the chronic dog oral toxicity study, which EPA considers to be protective of any neurotoxicity at higher dose levels.

    iii. There is no evidence that metaldehyde results in increased susceptibility following in utero exposure to metaldehyde in either the rat or rabbit developmental toxicity study, and there is no evidence of increased susceptibility following in utero and/or pre-/post-natal exposure in the 2-generation reproduction study in rats.

    iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on established and proposed tolerance-level residues, 100 PCT, default processing factors, and EDWCs from chronic ground water (worst case) models to assess exposure to metaldehyde in drinking water. EPA used similarly conservative assumptions to assess exposure to adult handlers, and post application exposure of children (including incidental oral exposure of toddlers). These assessments will not underestimate the exposure and risks posed by metaldehyde based on the current and proposed use patterns.

    E. Aggregate Risks and Determination of Safety

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

    1. Acute risk. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water to metaldehyde will occupy 18% of the aPAD for the general population, and 55% of the aPAD for all infants less than 1 year old, the population group receiving the greatest exposure.

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to metaldehyde from food and water will utilize 22% of the cPAD for the general population, and 52% of the cPAD for all infants less than 1 year old, the population group receiving the greatest exposure. Based on the explanation in Unit III.C.3., regarding residential use patterns, chronic residential exposure to residues of metaldehyde is not expected.

    3. Short-term risk: Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

    Metaldehyde is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to metaldehyde. Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 1400 for adults and 580 for children. Because EPA's level of concern for metaldehyde is an MOE of 100 or below, these MOEs are not of concern.

    4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Metaldehyde is currently registered for uses that could result in intermediate-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with intermediate-term residential exposures to metaldehyde. Using the exposure assumptions described in this unit for intermediate-term exposures, EPA has concluded that the combined intermediate-term food, water, and residential exposures result in an aggregate MOE of 270 (for children only). Because EPA's level of concern for metaldehyde is a MOE of 100 or below, this MOE is not of concern.

    5. Aggregate cancer risk for U.S. population. Based on the data summarized in Unit III, EPA believes that quantification of metaldehyde risk using a non-linear RfD approach will adequately account for all related chronic toxicity, including carcinogenicity. Based on the chronic risk assessment, EPA concludes that aggregate exposure to metaldehyde will not pose a cancer risk.

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

    IV. Other Considerations A. Analytical Enforcement Methodology

    Adequate enforcement methodology (gas chromatography with mass spectrometry (GC/MS) method (EN-CASTM Method No. ENC-3/99, Revision 1) is available to enforce the tolerance expression. The limit of quantitation (LOQ) for this method is 0.05 ppm for all plant commodities except hops, for which it is 0.10 ppm.

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

    B. International Residue Limits

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

    The Codex has not established a MRL for metaldehyde.

    C. Revisions to Petitioned-for Tolerances

    For hop, dried cones, the analytical method was not successfully validated at the proposed tolerance level of 0.05 ppm. Therefore, EPA is establishing the tolerance level for this commodity at the lowest validated LOQ for hops of 0.10 ppm. In addition, the commodity definition proposed as “beet, garden, tops” is corrected to read: “beet, garden, leaves”.

    V. Conclusion

    Therefore, tolerances are established for residues of metaldehyde, 2,4,6,8-tetramethyl-1,3,5,7-tetroxocane, in or on beet, garden, leaves at 0.08 ppm; beet, garden, roots at 0.05 ppm; hop, dried cones at 0.10 ppm; rutabaga, roots at 0.05 ppm; turnip, greens at 0.08 ppm; turnip, roots at 0.05 ppm; wheat, forage at 0.05 ppm; wheat, grain at 0.05 ppm; wheat, hay at 0.05 ppm and wheat, straw at 0.05 ppm.

    VI. Statutory and Executive Order Reviews

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

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

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

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

    VII. Congressional Review Act

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

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: September 30, 2016. Michael L. Goodis, Acting Director, Registration Division, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. In § 180.523, add alphabetically the commodities “beet, garden, leaves”; “beet, garden, roots”; “hop, dried cones”; “rutabaga, roots”; “turnip greens”; “turnip, roots”; “wheat, forage”; “wheat, grain”; “wheat, hay”; and “wheat, straw” to the table in paragraph (c) to read as follows:
    § 180.523 Metaldehyde; tolerances for residues.

    (c) * * *

    Commodity Parts
  • per
  • million
  • Beet, garden, leaves 0.08 Beet, garden, roots 0.05 *    *    *    *    * Hop, dried cones 0.10 Rutabaga, roots 0.05 *    *    *    *    * Turnip greens 0.08 Turnip, roots 0.05 Wheat, forage 0.05 Wheat, grain 0.05 Wheat, hay 0.05 Wheat, straw 0.05
    [FR Doc. 2016-25166 Filed 10-17-16; 8:45 am] BILLING CODE 6560-50-P
    NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 1816, 1823, 1832, 1845, and 1852 NASA Federal Acquisition Regulation Supplement AGENCY:

    National Aeronautics and Space Administration.

    ACTION:

    Technical amendments.

    SUMMARY:

    NASA is making technical amendments to the NASA FAR Supplement (NFS) to provide needed editorial changes.

    DATES:

    Effective: October 18, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Manuel Quinones, NASA, Office of Procurement, Contract and Grant Policy Division, via email at [email protected], or telephone (202) 358-2143.

    SUPPLEMENTARY INFORMATION: I. Background

    As part of NASA's retrospective review of existing regulations NASA is conducting periodic reviews of the NASA FAR Supplement (NFS) to ensure the accuracy of information disseminated to the acquisition community. This rule makes administrative changes to the NFS to correct typographical errors as well as inadvertent omissions from prior rulemaking actions. A summary of changes follows:

    • Section 1816.406-70(c) is revised to correct a typographical error.

    • Section 1823.7001(c) is revised by replacing the word “clause” with the word “provision.”

    • Section 1832.908 is revised to add a clause prescription inadvertently omitted.

    • Section 1845.107-70(e) is revised to replace the word “property” with “equipment” and paragraph (m) is revised to replace the term “NASA owned property” with “NASA real property.”

    • Section 1852.217-72 is revised to correct the clause date.

    • Section 1852.223-73 is revised to replace the word “clause” with the word “provision.”

    • Section 1852.231-71 is revised to correct the clause date.

    List of Subject in 48 CFR Parts 1816, 1823, 1832, 1845, and 1852

    Government procurement.

    Manuel Quinones, NASA FAR Supplement Manager.

    Accordingly, 48 CFR parts 1816, 1823, 1832, 1845, and 1852 are amended as follows:

    1. The authority citation for parts 1816, 1823, 1832, and 1852 continues to read as follows: Authority:

    51 U.S.C. 20113(a) and 48 CFR chapter 1.

    PART 1816—TYPES OF CONTRACTS
    1816.406-70 [Amended]
    2. Amend section 1816.406-70(e) by removing the words “in cost an award fee” and adding “in award fee” in its place. PART 1823—ENVIRONMENT, ENERGY AND WATER EFFICIENCY, RENEWABLE ENERGY TECHNOLOGIES, OCCUPATIONAL SAFETY, AND DRUG-FREE WORKPLACE
    1823.7001 [Amended]
    3. Amend section 1823.7001(c) by removing the word “clause” and adding word “provision” wherever it occurs. PART 1832—CONTRACT FINANCING 4. Amend section 1832.908 by adding paragraph (c)(2) to read as follows:
    1832.908 Contract clauses.

    (c)(2) When the clause at FAR 52.232-25, Prompt Payment, is used in such contracts with the Canadian Commercial Corporation (CCC), insert “17th” in lieu of “30th” in paragraphs (a)(1)(i)(A) and (B) and (a)(1)(ii).

    PART 1845—GOVERNMENT PROPERTY 5. The authority citation for part 1845 is revised to read as follows: Authority:

    51 U.S.C. 20113(a) and 48 CFR chapter 1.

    1845.107-70 [Amended]
    6. Amend section 1845.107-70— a. In paragraph (e) introductory text, by removing “Government Property” and adding “Government Equipment” in its place; and b. In paragraph (m), by removing “NASA owned property” and adding “NASA real property” in its place. PART 1852—SOLICITATION PROVISIONS AND CONTRACT CLAUSES
    1852.217-72 [Amended]
    7. Amend section 1852.217-72 by removing “MAY 2000” and adding “NOV 2011” in its place.
    1852.223-73 [Amended]
    8. Amend section 1852.223-73 by removing the word “clause” and adding in its place the word “provision” wherever it occurs.
    1852.231-71 [Amended]
    9. Amend section 1852.231-71 by removing “MAR 1994” and adding “APR 2015” in its place.
    [FR Doc. 2016-25014 Filed 10-17-16; 8:45 am] BILLING CODE 7510-13-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [Docket No. 150121066-5717-02] RIN 0648-XE963 Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Fisheries AGENCY:

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

    ACTION:

    Temporary rule; inseason General category bluefin tuna quota transfer and retention limit adjustment.

    SUMMARY:

    NMFS is transferring 18 metric tons (mt) of Atlantic bluefin tuna (BFT) quota from the Harpoon category and 67 mt from the Reserve category to the General category for the remainder of the 2016 fishing year. These transfers result in adjusted 2016 quotas of 676.7 mt, 20.6 mt, and 8.6 mt for the General, Harpoon, and Reserve category quotas, respectively. NMFS also is adjusting the Atlantic tunas General category BFT daily retention limit from four large medium or giant BFT per vessel per day/trip to two large medium or giant BFT per vessel per day/trip for the remainder of the 2016 fishing year. This action is based on consideration of the regulatory determination criteria regarding inseason adjustments and applies to Atlantic tunas General category (commercial) permitted vessels and Highly Migratory Species (HMS) Charter/Headboat category permitted vessels when fishing commercially for BFT.

    DATES:

    The quota transfer is effective October 14, 2016, through December 31, 2016. The General category retention limit adjustment is effective October 17, 2016, through December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Sarah McLaughlin or Brad McHale, 978-281-9260.

    SUPPLEMENTARY INFORMATION:

    Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq.) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq.) governing the harvest of BFT by persons and vessels subject to U.S. jurisdiction are found at 50 CFR part 635. Section 635.27 subdivides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) among the various domestic fishing categories, per the allocations established in the 2006 Consolidated Highly Migratory Species Fishery Management Plan (2006 Consolidated HMS FMP) (71 FR 58058, October 2, 2006), as amended by Amendment 7 to the 2006 Consolidated HMS FMP (Amendment 7) (79 FR 71510, December 2, 2014). NMFS is required under ATCA and the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest the ICCAT-recommended quota.

    The base quota for the General category is 466.7 mt. See § 635.27(a). Each of the General category time periods (January through March, June through August, September, October through November, and December) is allocated a portion of the annual General category quota. Based on the General category base quota of 466.7 mt, the subquotas for each time period are as follows: 24.7 mt for January; 233.3 mt for June through August; 123.7 mt for September; 60.7 mt for October through November; and 24.3 mt for December. Any unused General category quota rolls forward within the fishing year, which coincides with the calendar year, from one time period to the next, and is available for use in subsequent time periods. On December 14, 2015, NMFS published an inseason action transferring 24.3 mt of BFT quota from the December 2016 subquota to the January 2016 subquota period (80 FR 77264). To date this year, NMFS has published three actions that have adjusted and/or distributed the available 2016 Reserve category quota, which is currently 75.6 mt (81 FR 19, January 4, 2016; 81 FR 60286, September 1, 2016; and 81 FR 70369, October 12, 2016).

    The 2016 General category fishery was open January 1, 2016, through March 31, 2016, reopened June 1, 2016, and remains open until December 31, 2016, or until the adjusted General category quota is reached, whichever comes first.

    NMFS recently took a similar action (81 FR 70369, October 12, 2016) which reduced the daily retention limit from five to four large medium or giant BFT per vessel as well as transferred 125 mt of BFT quota to the General category from the Reserve category to meet the same objectives stated below. Based on continued fish availability, catch rates, effort, as well as other determination criteria, NMFS is taking this action with the same intent.

    Under § 635.27(a)(9), NMFS has the authority to transfer quota among fishing categories or subcategories, after considering 14 determination criteria provided under § 635.27(a)(8), including five new criteria added in Amendment 7.

    NMFS has considered all of the relevant determination criteria and their applicability to this inseason quota transfer and change in retention limit in the General category fishery. The criteria and their application are discussed below.

    Transfer of 85 mt to the General Category

    For the inseason quota transfer, NMFS considered the usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock (§ 635.27(a)(8)(i)). Biological samples collected from BFT landed by General category fishermen and provided by tuna dealers provide NMFS with valuable parts and data for ongoing scientific studies of BFT age and growth, migration, and reproductive status. Additional opportunity to land BFT in the General Category would support the continued collection of a broad range of data for these studies and for stock monitoring purposes.

    NMFS also considered the catches of the General category quota to date and the likelihood of closure of that segment of the fishery if no adjustment is made (§ 635.27(a)(8)(ii)). As of October 11, 2016, the General category has landed approximately 537 mt of its adjusted 2016 quota of 591.7 mt. Without a quota transfer, NMFS would have to close the 2016 General category fishery for the remainder of the year, while unused quota remains in the Harpoon and Reserve categories. Regarding the projected ability of the vessels fishing under the particular category quota (here, the General category) to harvest the additional amount of BFT before the end of the fishing year (§ 635.27(a)(8)(iii)), NMFS considered catches during the winter fishery in the last several years. General category landings in the winter BFT fishery, which typically begins in December or January each year, are highly variable and depend on availability of commercial-sized BFT. Commercial-sized BFT have continued to be available to General category vessels currently, and General category vessels should be able to harvest the additional amount (85 mt) of quota before the end of the fishing year.

    NMFS also considered the estimated amounts by which quotas for other gear categories of the fishery might be exceeded (§ 635.27(a)(8)(iv)) and the ability to account for all 2016 landings and dead discards. Overall, approximately 60 percent of the total of the currently available commercial BFT subquotas for 2016 has been harvested. Activity in the Harpoon category has stopped for the year. NMFS will need to account for 2016 landings and dead discards within the adjusted U.S. quota, consistent with ICCAT recommendations and anticipates having sufficient quota to do that even with this transfer from the Harpoon and Reserve categories. These quota transfers would provide additional opportunities to harvest the U.S. BFT quota without exceeding it, while preserving the opportunity for General category fishermen to participate in the fall/winter BFT fishery.

    Another principal consideration is the objective of providing opportunities to harvest the full annual U.S. BFT quota without exceeding it based on the goals of the 2006 Consolidated HMS FMP and Amendment 7, including to achieve optimum yield on a continuing basis and to optimize the ability of all permit categories to harvest their full BFT quota allocations (§ 635.27(a)(8)(vi)). This transfer is consistent with the quotas established and analyzed in the most recent BFT quota final rule (80 FR 52198, August 28, 2015) and with objectives of the 2006 Consolidated HMS FMP and amendments, and is not expected to negatively impact stock health or to affect the stock in ways not already analyzed in those documents (§ 635.27(a)(8)(v) and (x)).

    Based on the considerations above, NMFS is transferring 18 mt of Harpoon category quota and 67 mt of Reserve category quota to the General category for the remainder of 2016, resulting in adjusted General, Harpoon, and Reserve category quotas for 2016 of 676.7 mt, 20.6 mt, and 23.6 mt, respectively. NMFS will close the 2016 General category fishery for the remainder of the year when the adjusted General category quota of 676.7 mt has been reached.

    Adjustment of General Category Daily Retention Limit

    Under § 635.23(a)(4), NMFS may increase or decrease the daily retention limit of large medium and giant BFT over a range of zero to a maximum of five per vessel based on consideration of the relevant criteria provided under § 635.27(a)(8), and listed above. NMFS adjusted the daily retention limit for the 2016 January subquota period (which closed March 31) from the default level of one large medium or giant BFT to three large medium or giant BFT in December 2016 (80 FR 77264, December 14, 2015). NMFS adjusted the daily retention limit to five large medium or giant BFT for the June through August 2016 subquota period (81 FR 29501, May 12, 2016), and again for the September, October through November, and December periods (81 FR 59153, August 29, 2016); and recently to four large medium or giant BFT (81 FR 70369, October 12, 2016). NMFS has considered the relevant criteria and their applicability to the General category BFT retention limit for the remainder of the fishing year.

    As described above with regard to the quota transfer, additional opportunity to land BFT would support the continued collection of a broad range of data for the biological studies and for stock monitoring purposes (§ 635.27(a)(8)(i)). Regarding the effects of the adjustment on BFT stock rebuilding and the effects of the adjustment on accomplishing the objectives of the fishery management plan (§ 635.27(a)(8)(v) and (x)), this action would be taken consistent with the previously implemented and analyzed quotas, and it is not expected to negatively impact stock health or otherwise affect the stock in ways not previously analyzed. It is also supported by the Environmental Analysis for the 2011 final rule regarding General and Harpoon category management measures, which established the current range over which NMFS may set the General category daily retention limit (i.e., from zero to five fish) (76 FR 74003, November 30, 2011).

    As described above, a principal consideration is the objective of providing opportunities to harvest the available U.S. BFT quota without exceeding that quota, based on the goals of the 2006 Consolidated HMS FMP and Amendment 7. The retention limit currently is four fish. NMFS is setting the retention limit at two fish through this action because, given the expected level of fishing effort and catch rates, a continued level of four fish may lead to exceeding the adjusted category quota, and less than two would likely result in underharvest.

    Based on these considerations, NMFS has determined that a two-fish General category retention limit is warranted for the remainder of the year. It would provide a reasonable opportunity to harvest the U.S. quota of BFT without exceeding it, while maintaining an equitable distribution of fishing opportunities, help optimize the ability of the General category to harvest its available quota, allow collection of a broad range of data for stock monitoring purposes, and be consistent with the objectives of the 2006 Consolidated HMS FMP and amendments. Therefore, NMFS adjusts the General category retention limit from four to two large medium or giant BFT per vessel per day/trip, effective October 17, 2016, through December 31, 2016.

    Regardless of the duration of a fishing trip, the daily retention limit applies upon landing. For example (and specific to the limit that will apply through the end of the year), whether a vessel fishing under the General category limit takes a two-day trip or makes two trips in one day, the day/trip limit of two fish applies and may not be exceeded upon landing. This General category retention limit is effective in all areas, except for the Gulf of Mexico, where NMFS prohibits targeted fishing for BFT, and applies to those vessels permitted in the General category, as well as to those HMS Charter/Headboat permitted vessels fishing commercially for BFT.

    Monitoring and Reporting

    NMFS will continue to monitor the BFT fishery closely. Dealers are required to submit landing reports within 24 hours of a dealer receiving BFT. General, HMS Charter/Headboat, Harpoon, and Angling category vessel owners are required to report the catch of all BFT retained or discarded dead, within 24 hours of the landing(s) or end of each trip, by accessing hmspermits.noaa.gov. Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional action (i.e., quota and/or daily retention limit adjustment, or closure) is necessary to ensure available quota is not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas. If needed, subsequent adjustments will be published in the Federal Register. In addition, fishermen may call the Atlantic Tunas Information Line at (978) 281-9260, or access hmspermits.noaa.gov, for updates on quota monitoring and inseason adjustments.

    Classification

    The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:

    The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Affording prior notice and an opportunity for public comment to implement the quota transfer and daily retention limit for the remainder of the year is impracticable as NMFS must react as quickly as possible to updated data and information that then requires immediate action to be effective on the fishing grounds and thus efficiently manage the fishery. NMFS could not effectively react to this data if, in implementing the retention limit, it allowed a public comment period, which, for both the quota transfers, would preclude fishermen from harvesting BFT that are legally available consistent with all of the regulatory criteria.

    Delays in adjusting the retention limit may result in the available quota being exceeded and NMFS needing to close the fishery earlier than otherwise would be necessary under a lower limit. This could adversely affect those General and HMS Charter/Headboat category vessels that would otherwise have an opportunity to harvest BFT under retention limits set in response to the most recent data available. Limited opportunities to harvest the respective quotas may have negative social and economic impacts for U.S. fishermen that depend upon catching the available quota within the time periods designated in the 2006 Consolidated HMS FMP, as amended. Adjustment of the retention limit needs to be effective as soon as possible to extend fishing opportunities for fishermen in geographic areas with access to the fishery only during this time period. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For these reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.

    This action is being taken under §§ 635.23(a)(4) and 635.27(a)(9), and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 971 et seq. and 1801 et seq.

    Dated: October 14, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-25309 Filed 10-14-16; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 160301164-6694-02] RIN 0648-XE955 Fisheries of the Northeastern United States; Northeast Skate Complex; Adjustment to the Skate Bait Inseason Possession Limit AGENCY:

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

    ACTION:

    Temporary rule; inseason adjustment.

    SUMMARY:

    We announce the reduction of the commercial per-trip skate bait possession limit from 25,000 lb (11,340 kg) to 9,307 lb (4,222 kg) whole weight through October 31, 2016. This action is required to prevent the skate bait Season 2 quota from being exceeded. This announcement informs the public that the skate bait possession limit is reduced.

    DATES:

    Effective October 17, 2016, through October 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    William Whitmore, Fishery Policy Analyst, 978-281-9182.

    SUPPLEMENTARY INFORMATION:

    Background

    The bait skate fishery is managed primarily through the Northeast Skate Complex Fishery Management Plan. The regulations describing the process to adjust inseason commercial possession limits of skate bait are described at 50 CFR 648.322(b) and (d). When the National Marine Fisheries Service Regional Administrator, Greater Atlantic Region projects that 90 percent of the skate bait fishery seasonal quota has been landed, the Regional Administrator is required to reduce the skate bait trip limit unless such a reduction would be expected to prevent attainment of the seasonal quota or annual TAL. The current skate bait trip limit is 25,000 lb (11,340 kg) and the current skate wing trip limit is 9,307 lb (4,222 kg) whole weight, 4,100 lb (1,860 kg) skate wings.

    Inseason Action

    Based on commercial landings data reported through October 1, 2016, the skate bait fishery is projected to reach or exceed 90 percent of the Season 2 quota on or around October 15, 2016. Further, catch projections indicate that retaining the current skate bait possession limits would result in 109 percent of the Season 2 quota being harvested. Additional projections indicate that the annual TAL is likely to be attained in Season 3, even with this season 2 possession limit reduction. Therefore, consistent with § 648.322(b) and (d) we are reducing the skate wing trip limit from 25,000 lb (11,340 kg) to 9,307 lb (4,222 kg) whole weight [4,100 lb (1,860 kg) skate wings] to prevent the season 2 quota from being exceeded. Beginning October 17, 2016, no person may possess on board or land more than 9,307 lb (4,222 kg) of skate bait per trip for the remainder of Season 2 (i.e., through October 31, 2016). The 25,000 lb (11,340 kg) skate bait trip limit is reinstated on November 1, 2016, the start of Season 3.

    Classification

    This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: October 13, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-25139 Filed 10-13-16; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 150818742-6210-02] RIN 0648-XE966 Fisheries of the Exclusive Economic Zone Off Alaska; Pacific Ocean Perch 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 the incidental catch allowance for Pacific Ocean perch in the Central Regulatory Area of the Gulf of Alaska (GOA). This action is necessary because the 2016 total allowable catch of Pacific Ocean perch apportioned to the incidental catch allowance in the Central Regulatory Area of the GOA has been reached.

    DATES:

    Effective 1200 hours, Alaska local time (A.l.t.), October 14, 2016, through 2400 hours, A.l.t., December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Josh Keaton, 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 Pacific Ocean perch apportioned to the incidental catch allowance in the Central Regulatory Area of the GOA is 1,500 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 Pacific Ocean perch apportioned to the incidental catch allowance in the Central Regulatory Area of the GOA has been reached. Therefore, NMFS is requiring that catches of the incidental catch allowance for Pacific ocean perch in the Central Regulatory Area of the GOA be treated as prohibited species in accordance with § 679.21(b). This closure does not apply to fishing by vessels participating in the cooperative fishery of the Rockfish Program for the Central GOA.

    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 retention of the incidental catch allowance for Pacific Ocean perch 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 October 12, 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: October 13, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-25140 Filed 10-13-16; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 150818742-6210-02] RIN 0648-XE967 Fisheries of the Exclusive Economic Zone Off Alaska; Sablefish 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 sablefish by vessels using trawl gear and not participating in the cooperative fishery of the Rockfish Program in the Central Regulatory Area of the Gulf of Alaska (GOA). This action is necessary because the 2016 total allowable catch of sablefish allocated to vessels using trawl gear and not participating in the cooperative fishery of the Rockfish Program in the Central Regulatory Area of the GOA has been reached.

    DATES:

    Effective 1200 hours, Alaska local time (A.l.t.), October 14, 2016, through 2400 hours, A.l.t., December 31, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Josh Keaton, 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 sablefish by vessels using trawl gear and not participating in the cooperative fishery of the Rockfish Program in the Central Regulatory Area of the GOA is 391 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 sablefish by vessels using trawl gear and not participating in the cooperative fishery of the Rockfish Program in the Central Regulatory Area of the GOA has been reached. Therefore, NMFS is requiring that sablefish by vessels using trawl gear and not participating in the cooperative fishery of the Rockfish Program in the Central Regulatory Area of the GOA be treated as prohibited species in accordance with § 679.21(b). This closure does not apply to fishing by vessels participating in the cooperative fishery of the Rockfish Program for the Central Regulatory Area of the GOA.

    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 sablefish by vessels using trawl gear and not participating in the cooperative fishery of the Rockfish Program 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 October 12, 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: October 13, 2016. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2016-25138 Filed 10-13-16; 4:15 pm] BILLING CODE 3510-22-P
    81 201 Tuesday, October 18, 2016 Proposed Rules OFFICE OF GOVERNMENT ETHICS 5 CFR Part 2641 RIN 3209-AA14 Post-Employment Conflict of Interest Restrictions; Revision of Departmental Component Designations AGENCY:

    Office of Government Ethics.

    ACTION:

    Proposed rule.

    SUMMARY:

    The U.S. Office of Government Ethics (OGE) is issuing a proposed rule to revise the component designations of two agencies for purposes of the one-year post-employment conflict of interest restriction for senior employees. Specifically, OGE is proposing to revoke two existing component designations and add five new component designations, based on the recommendations of the agencies concerned.

    DATES:

    Written comments are invited and must be received on or before November 17, 2016.

    ADDRESSES:

    You may submit comments, in writing, to OGE on this proposed rule, identified by RIN 3209-AA14, by any of the following methods:

    Email: [email protected]. Include the reference “Proposed Rule Revising Departmental Component Designations” in the subject line of the message.

    Fax: (202) 482-9237.

    Mail/Hand Delivery/Courier: Office of Government Ethics, Suite 500, 1201 New York Avenue NW., Washington, DC 20005-3917, Attention: “Proposed Rule Revising Departmental Component Designations.”

    Instructions: All submissions must include OGE's agency name and the Regulation Identifier Number (RIN), 3209-AA14, for this proposed rulemaking. All comments, including attachments and other supporting materials, will become part of the public record and subject to public disclosure. Comments may be posted on OGE's Web site, www.oge.gov. Sensitive personal information, such as account numbers or Social Security numbers, should not be included. Comments generally will not be edited to remove any identifying or contact information.

    FOR FURTHER INFORMATION CONTACT:

    Kimberly L. Sikora Panza, Associate Counsel, Office of Government Ethics, Suite 500, 1201 New York Avenue NW., Washington, DC 20005-3917; Telephone: (202) 482-9300; TTY: (800) 877-8339; FAX: (202) 482-9237.

    SUPPLEMENTARY INFORMATION: I. Substantive Discussion; Revocation and Addition of Departmental Components

    The Director of OGE (Director) is authorized by 18 U.S.C. 207(h) to designate distinct and separate departmental or agency components in the executive branch for purposes of 18 U.S.C. 207(c), the one-year post-employment conflict of interest restriction for senior employees. The representational bar of 18 U.S.C. 207(c) usually extends to the whole of any department or agency in which a former senior employee served in any capacity during the year prior to termination from a senior employee position. However, 18 U.S.C. 207(h) provides that whenever the Director determines that an agency or bureau within a department or agency in the executive branch exercises functions which are distinct and separate from the remaining functions of the department or agency and there exists no potential for use of undue influence or unfair advantage based on past Government service, the Director shall by rule designate such agency or bureau as a separate component of that department or agency. As a result, a former senior employee who served in a “parent” department or agency is not barred by 18 U.S.C. 207(c) from making communications to or appearances before any employees of any designated component of that parent, but is barred as to employees of that parent or of other components that have not been separately designated. Moreover, a former senior employee who served in a designated component of a parent department or agency is barred from communicating to or making an appearance before any employee of that component, but is not barred as to any employee of the parent, of another designated component, or of any other agency or bureau of the parent that has not been designated.

    Under 18 U.S.C. 207(h)(2), component designations do not apply to persons employed at a rate of pay specified in or fixed according to subchapter II of 5 U.S.C. chapter 53 (the Executive Schedule). Component designations are listed in appendix B to 5 CFR part 2641.

    The Director regularly reviews the component designations and determinations and, in consultation with the department or agency concerned, makes such additions and deletions as are necessary. Specifically, the Director “shall, by rule, make or revoke a component designation after considering the recommendation of the designated agency ethics official.” 5 CFR 2641.302(e)(3). Before designating an agency component as distinct and separate for purposes of 18 U.S.C. 207(c), the Director must find that there exists no potential for use of undue influence or unfair advantage based on past Government service, and that the component is an agency or bureau, within a parent agency, that exercises functions which are distinct and separate from the functions of the parent agency and from the functions of other components of that parent. 5 CFR 2641.302(c).

    Pursuant to the procedures prescribed in 5 CFR 2641.302(e), two agencies have forwarded written requests to OGE to amend their listings in appendix B. After carefully reviewing the requested changes in light of the criteria in 18 U.S.C. 207(h) as implemented in 5 CFR 2641.302(c), OGE is proposing to grant these requests and amend appendix B as explained below.

    The Department of Labor has requested that OGE revoke the designation of the Employment Standards Administration (ESA) in appendix B to part 2641, and in the place of ESA designate the Office of Federal Contract Compliance Programs (OFCCP), Office of Labor Management Standards (OLMS), Office of Workers' Compensation Programs (OWCP), and the Wage and Hour Division (WHD) as distinct and separate components of the Department of Labor for purposes of 18 U.S.C. 207(c). These four entities were the major program components of ESA until November 8, 2009, when the Secretary of the Department of Labor dissolved ESA into its constituent components. OFCCP, OLMS, OWCP, and WHD are each headed by a director who now reports directly to the Secretary of Labor.

    OFCCP enforces, for the benefit of job seekers and wage earners, the contractual promise of affirmative action and equal employment opportunity required of those who do business with the Federal Government (Government contractors and subcontractors). Specifically, OFCCP administers and enforces three legal authorities requiring equal employment opportunity: Executive Order 11246, as amended; Section 503 of the Rehabilitation Act of 1973, as amended; and the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212. These authorities prohibit Federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, disability, and protected veteran status, and also require Federal contractors and subcontractors to take affirmative action to ensure equal employment opportunity in their employment processes.

    OLMS administers and enforces most provisions of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA). The LMRDA is a law that promotes union democracy and financial integrity in private sector labor unions through standards for union officer elections and union trusteeships and safeguards for union assets, and also promotes labor union and labor-management transparency through certain reporting and disclosure requirements. In addition to the LMRDA, OLMS administers provisions of the Civil Service Reform Act of 1978 and the Foreign Service Act of 1980 relating to standards of conduct for Federal employee organizations, which are comparable to LMRDA requirements. OLMS' role as an independent enforcement agency overseeing unions gives it a unique and critical role within the Department of Labor with a key stakeholder.

    OWCP administers four major disability compensation programs that provide wage replacement benefits, medical treatment, vocational rehabilitation, and other benefits to certain workers or their dependents who experience work-related injury or occupational disease. Specifically, the OWCP administers the Energy Employees Occupational Illness Compensation Program, the Federal Employees' Compensation Program, the Longshore and Harbor Workers' Compensation Program, and the Coal Mine Workers' Compensation Program, each of which serve specific employee groups by mitigating the financial burden resulting from workplace injury.

    WHD enforces the federal minimum wage, overtime pay, recordkeeping, and child labor requirements of the Fair Labor Standards Act. WHD also enforces the Migrant and Seasonal Agricultural Worker Protection Act, the Employee Polygraph Protection Act, the Family and Medical Leave Act, the wage garnishment provisions of the Consumer Credit Protection Act, and various employment standards and worker protections provided in several immigration-related statutes. WHD also administers and enforces the prevailing wage requirements of the Davis Bacon Act and the Service Contract Act, and other statues applicable to federal contracts for construction and the provision of goods and services.

    According to the Department of Labor, the functions of OFCCP, OLMS, OWCP, and WHD are distinct and separate from each other, and also distinct and separate from every other agency within the Department. This distinction was previously recognized when OGE designated the now-abolished parent agency, ESA, as a separate component of the Department of Labor for purposes of 18 U.S.C. 207(c). The action that abolished the ESA left OFCCP, OLMS, OWCP, and WHD in its place. The four departments were each created by distinct authorities that are separate not only from each other but also from the organic statute for the Department of Labor; have been explicitly delegated distinct responsibilities following dissolution of the ESA; exercise distinct and separate functions to implement and enforce distinct and separate statutes; as noted above, are each headed by a political appointee who reports directly to the Secretary of Labor; and are relatively the same size as other components designated by the Department of Labor in appendix B to part 2641. Given the manner in which OFCCP, OLMS, OWCP, and WHD work independently from other component agencies and the general management of the Department of Labor, there exists no potential for the use of undue influence or unfair advantage based on past Government service.

    Accordingly, OGE is proposing to grant the request of the Department of Labor and is proposing to amend the agency's listing in appendix B to part 2641 to remove the ESA from the component designation list and to designate OFCCP, OLMS, OWCP, and WHD as new components for purposes of 18 U.S.C. 207(c).

    The Department of Transportation has requested that OGE designate the Pipeline and Hazardous Materials Safety Administration (PHMSA) as a distinct and separate component of the Department of Transportation for purposes of 18 U.S.C. 207(c). Created pursuant to the Norman Y. Mineta Research and Special Programs Improvements Act of 2004, PHMSA is responsible for regulating safety in pipeline transportation and hazardous materials transportation, see 49 U.S.C. 108, and administers the Natural Gas Pipeline Safety Act of 1968, among other authorities. PHMSA is headed by an Administrator who reports directly to the Secretary of Transportation. The Administrator is statutorily authorized to carry out the duties and powers related to pipeline and hazardous materials transportation and safety, as well as other duties and powers prescribed by the Secretary.

    According to the Department of Transportation, PHMSA is responsible for exercising functions that are distinct and separate from the Department of Transportation and from the functions of other Operating Administrations within the agency. PHMSA is the only mode within DOT charged with regulating pipeline safety. It is also the only mode with the primary delegated authority to regulate hazardous material packaging, and is responsible for drafting all hazardous material regulations. In light of the distinct and separate functions of PHMSA, there is no potential for the use of undue influence or unfair advantage based on based on past Government service. PHMSA is comparable in size to several other Department of Transportation divisions that are currently designated as separate components in appendix B to part 2641, and with the designation of PHMSA, each of the Operating Administrations of the Department of Transportation will be designated as separate components for purposes of 18 U.S.C. 207(c).

    Accordingly, OGE is proposing to grant the request of the Department of Transportation and amend the listing in appendix B to part 2641 to designate the Pipeline and Hazardous Materials Safety Administration as a new component for purposes of 18 U.S.C. 207(c).

    The Department of Transportation also has requested revocation of the designation of the Surface Transportation Board (STB) in appendix B to part 2641. The STB, the successor to the Interstate Commerce Commission, was established in 1996 as an independent entity within the Department of Transportation. On December 28, 2015, the Surface Transportation Board Reauthorization Act of 2015 (Pub. L. 114-110) established the STB as a wholly-independent federal agency. Because the STB is now an independent agency and is no longer administratively aligned with the Department of Transportation, OGE is proposing to grant the request of the Department of Transportation and amend the listing in appendix B to part 2641 to remove STB from the component designation list.

    As indicated in 5 CFR 2641.302(f), a designation “shall be effective on the date the rule creating the designation is published in the Federal Register and shall be effective as to individuals who terminated senior service either before, on or after that date.” Initial designations in appendix B to part 2641 were effective as of January 1, 1991. The effective date of subsequent designations is indicated by means of parenthetical entries in appendix B. The new component designations made in this proposed rule would be effective on the date the final rule is published in the Federal Register.

    As also indicated in 5 CFR 2641.302(f), revocation of a component designation is effective 90 days after the publication in the Federal Register of the rule that revokes the designation. Accordingly, the component designation revocations proposed in this rule would take effect 90 days after the publication of the final rule effectuating these proposed changes. Revocations are not effective as to any individual terminating senior service prior to the expiration of the 90-day period.

    II. Matters of Regulatory Procedure Regulatory Flexibility Act

    As Director of the Office of Government Ethics, I certify under the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this proposed rule will not have a significant economic impact on a substantial number of small entities because it affects only Federal departments and agencies and current and former Federal employees.

    Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply to this proposed rule because it does not contain information collection requirements that require the approval of the Office of Management and Budget.

    Unfunded Mandates Reform Act

    For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. chapter 25, subchapter II), this proposed rule would not significantly or uniquely affect small governments and will not result in increased expenditures by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (as adjusted for inflation) in any one year.

    Congressional Review Act

    The proposed rule is not a major rule as defined in 5 U.S.C. chapter 8, Congressional Review of Agency Rulemaking.

    Executive Orders 12866 and 13563

    In promulgating this rule, the Office of Government Ethics has adhered to the regulatory philosophy and the applicable principles of regulation set forth in Executive Orders 12866 and 13563. This proposed rule has not been reviewed by the Office of Management and Budget under Executive Order 12866 because it is not a “significant” regulatory action for the purposes of that order.

    Executive Order 12988

    As Director of the Office of Government Ethics, I have reviewed this proposed rule in light of section 3 of Executive Order 12988, Civil Justice Reform, and certify that it meets the applicable standards provided therein.

    List of Subjects in 5 CFR Part 2641

    Conflict of interests, Government employees.

    Approved: October 12, 2016. Walter M. Shaub, Jr., Director, Office of Government Ethics.

    Accordingly, for the reasons set forth in the preamble, the Office of Government Ethics proposes to amend 5 CFR part 2641, as set forth below:

    PART 2641—POST-EMPLOYMENT CONFLICT OF INTEREST RESTRICTIONS 1. The authority citation for part 2641 continues to read as follows: Authority:

    5 U.S.C. App. (Ethics in Government Act of 1978); 18 U.S.C. 207; E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.

    2. Amend appendix B to part 2641 as follows: a. Revise the listings for Parent: Department of Labor and Parent: Department of Transportation. b. Effective [DATE 90 DAYS AFTER THE DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], remove the Employment Standards Administration component from the listing for Parent: Department of Labor. c. Effective [DATE 90 DAYS AFTER THE DATE OF PUBLICATION OF THE FINAL RULE IN THE FEDERAL REGISTER], remove the Surface Transportation Board component from the listing for Parent: Department of Transportation.

    The revisions read as follows:

    Appendix B to Part 2641—Agency Components for Purposes of 18 U.S.C. 207(c) Parent: Department of Labor Components:

    Bureau of Labor Statistics.

    Employee Benefits Security Administration (formerly Pension and Welfare Benefits Administration) (effective May 16, 1997).

    Employment and Training Administration.

    Employment Standards Administration (expires 90 days after the date of publication of the final rule in the Federal Register).

    Mine Safety and Health Administration.

    Occupational Safety and Health Administration.

    Office of Disability Employment Policy (effective January 30, 2003).

    Office of Federal Contract Compliance Programs (effective upon publication of the final rule in the Federal Register).

    Office of Labor Management Standards (effective upon publication of the final rule in the Federal Register).

    Office of Workers' Compensation Programs (effective upon publication of the final rule in the Federal Register).

    Pension Benefit Guaranty Corporation (effective May 25, 2011).

    Wage and Hour Division (effective upon publication of the final rule in the Federal Register).

    Parent: Department of Transportation Components:

    Federal Aviation Administration.

    Federal Highway Administration.

    Federal Motor Carrier Safety Administration (effective January 30, 2003).

    Federal Railroad Administration.

    Federal Transit Administration.

    Maritime Administration.

    National Highway Traffic Safety Administration.

    Pipeline and Hazardous Materials Safety Administration (effective upon publication of the final rule in the Federal Register).

    Saint Lawrence Seaway Development Corporation.

    Surface Transportation Board (effective May 16, 1997; expires 90 days after the date of publication of the final rule in the Federal Register).

    [FR Doc. 2016-25054 Filed 10-17-16; 8:45 am] BILLING CODE 6345-03-P
    FEDERAL ELECTION COMMISSION 11 CFR Part 110 [Notice 2016-13] Internet Communication Disclaimers; Reopening of Comment Period and Notice of Hearing AGENCY:

    Federal Election Commission.

    ACTION:

    Reopening of comment period and notice of hearing.

    SUMMARY:

    On October 13, 2011, the Federal Election Commission published an Advance Notice of Proposed Rulemaking (“ANPRM”) seeking comment on whether to begin a rulemaking to revise its regulations concerning disclaimers on certain internet communications and, if so, on what changes should be made to those rules. The Commission has decided to reopen the comment period to receive additional comments in light of legal and technological developments since that notice was published. The Commission is also announcing a public hearing.

    DATES:

    The comment period for the ANPRM published October 13, 2011 (76 FR 63567) is reopened. Comments must be received on or before December 19, 2016. The Commission will hold a hearing on these issues on February 1, 2017. Anyone wishing to testify at the hearing must file timely written comments and must include in the written comments a request to testify.

    ADDRESSES:

    All comments must be in writing. Commenters are encouraged to submit comments electronically via the Commission's Web site at http://www.fec.gov/fosers, reference REG 2011-02, or by email to [email protected] Alternatively, commenters may submit comments in paper form, addressed to the Federal Election Commission, Attn.: Neven F. Stipanovic, Acting Assistant General Counsel, 999 E Street NW., Washington, DC 20463.

    Each commenter must provide, at a minimum, his or her first name, last name, city, state, and zip code. All properly submitted comments, including attachments, will become part of the public record, and the Commission will make comments available for public viewing on the Commission's Web site and in the Commission's Public Records Office. Accordingly, commenters should not provide in their comments any information that they do not wish to make public, such as a home street address, personal email address, date of birth, phone number, social security number, driver's license number, or any information that is restricted from disclosure, such as trade secrets or commercial or financial information that is privileged or confidential.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Neven F. Stipanovic, Acting Assistant General Counsel, or Ms. Jessica Selinkoff, Attorney, 999 E Street NW., Washington, DC 20463, (202) 694-1650 or (800) 424-9530.

    SUPPLEMENTARY INFORMATION:

    On October 13, 2011, the Commission published in the Federal Register an ANPRM seeking comment on whether and how to revise the rules at 11 CFR 110.11 regarding disclaimers on internet communications.1 Specifically, the Commission was considering whether to modify the disclaimer requirements for certain internet communications, or to provide exceptions thereto, consistent with the Federal Election Campaign Act, 52 U.S.C. 30101-46 (“the Act”). The Commission received seven substantive comments in response to the ANPRM. All but one of the commenters agreed that the Commission should update the disclaimer rules through a rulemaking, though commenters differed on how the Commission should do so. In light of subsequent legal and technological developments, the Commission is reopening the comment period and will hold a hearing.

    1See Internet Communication Disclaimers, 76 FR 63567 (Oct. 13, 2011).

    As discussed in the ANPRM, a “disclaimer” is a statement that must appear on certain communications to identify who paid for it and, where applicable, whether the communication was authorized by a candidate. 52 U.S.C. 30120(a); 11 CFR 110.11. With some exceptions, the Act and Commission regulations require disclaimers for public communications: (1) Made by a political committee; (2) that expressly advocate the election or defeat of a clearly identified federal candidate; or (3) that solicit a contribution. 52 U.S.C. 30120(a); 11 CFR 110.11(a). While the term “public communication” generally does not include internet communications, it does include “communications placed for a fee on another person's Web site.” 11 CFR 100.26.2 In addition to these internet public communications, “electronic mail of more than 500 substantially similar communications when sent by a political committee . . . and all Internet Web sites of political committees available to the general public” also must have disclaimers. 11 CFR 110.11(a).

    2 The Commission is currently proposing amendments intended to modernize a number of regulations, including 11 CFR 100.26. To review those proposals and other Commission rulemaking documents, visit http://www.fec.gov/fosers, reference REG 2013-01.

    Commission regulations set forth certain exceptions to the general disclaimer requirements. For example, disclaimers are not required for communications placed on “[b]umper stickers, pins, buttons, pens, and similar small items upon which the disclaimer cannot be conveniently printed.” 11 CFR 110.11(f)(1)(i) (the “small items exception”). Nor are disclaimers required for “[s]kywriting, water towers, wearing apparel, or other means of displaying an advertisement of such a nature that the inclusion of a disclaimer would be impracticable.” 11 CFR 110.11(f)(1)(ii) (the “impracticable exception”).

    As discussed in the ANPRM, some internet advertisements are so character-limited that providing all the disclaimer information required by the Act may take up much of the available ad characters. See Advisory Opinion 2010-19 (Google) (describing 95-character search result advertisements); cf. Advisory Opinion Request 2011-09 (Facebook) (describing several categories of advertisements ranging from zero to 160 characters).3 However, the ANPRM noted that technological options may allow for the display of disclaimers when a user “hovers” or “rolls” over the advertisement, or on the landing page to which the user is taken after clicking the advertisement.4

    3 Documents related to Commission advisory opinions are available at www.fec.gov/searchao.

    4See, e.g., Contents of Disclosure Statements. Advertisement Disclosure, Cal. Code Regs. tit. 2, sec. 18450.4(b)(3)(G)(1) (California small internet ad disclosure rule discussed in ANPRM).

    Since the publication of the ANPRM, the Commission has considered these issues in new factual contexts. See, e.g., Advisory Opinion Request 2013-18 (Revolution Messaging) (asking whether “banner ads” viewed on mobile phones, either in Web site or app, required disclaimers); MUR 6911 (Frankel) (considering whether candidates' and political parties' Twitter profiles and individual tweets required disclaimers). The Commission seeks comments on how the issues and possible approaches discussed in the ANPRM might or might not apply to these new technological presentations. The Commission also notes that, since the ANPRM was published, at least one additional state has joined California in adopting regulations to address small internet advertisements.5 The Commission seeks comments addressing persons' experiences in complying with (and receiving disclosure from) these state rules as well as other disclosure regimes. The Commission is also interested in comments that address:

    5See Electronic Media, Requirements, Md. Code Regs. 33.13.07.02(D)(2)(b).

    • How campaigns, parties, and other political committees, voters, and others disseminate and receive electoral information via the internet and other technologies, including any data or experiences in purchasing, selling, or distributing small or character-limited advertisements on Web sites, apps, and mobile devices;

    • any challenges in complying with the existing disclaimer rules as applied to internet communications;

    • the technological or other characteristics that might define a “small” internet advertisement;

    • how a disclaimer requirement or exception for “small” internet advertisements might be implemented;

    • the informational benefits of disclaimers on internet communications to assist voters in identifying the source of advertising so they are better “able to evaluate the arguments to which they are being subjected”; 6

    6Citizens United v. FEC, 558 U.S. 310, 368 (2010) (quoting First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 792 n.32 (1978)).

    • the informational benefits of disclaimers on internet communications, including Web sites and social media pages, to avoid voter confusion and reduce the incidence of solicitations that appear to be for candidates but are actually for non-candidate committees; and

    • the extent to which the Commission's consideration of disclaimer requirements should take into account current or anticipated models of internet advertising.

    The Commission also invites additional comments on any issues discussed in the ANPRM and is particularly interested in comments addressing advertisements on internet-enabled applications and devices (such as apps, eReaders, and wearable technology). Given the speed at which technological advances are developing, the Commission welcomes comments that address possible regulatory approaches that might minimize the need for serial revisions to the Commission's rules in order to adapt to new or emerging technologies.

    On behalf of the Commission.

    Dated: October 7, 2016. Matthew S. Petersen, Chairman, Federal Election Commission.
    [FR Doc. 2016-25103 Filed 10-17-16; 8:45 am] BILLING CODE 6715-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 216 [Docket No. FDA-2016-N-2462] Amendments to the Regulation Regarding the List of Drug Products That Have Been Withdrawn or Removed From the Market for Reasons of Safety or Effectiveness AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Food and Drug Administration (FDA or the Agency) is proposing to amend its regulations to revise the list of drug products that have been withdrawn or removed from the market because the drug products or components of such drug products have been found to be unsafe or not effective. Drugs appearing on this list may not be compounded under the exemptions provided by sections 503A and 503B of the Federal Food, Drug, and Cosmetic Act (the FD&C Act). Specifically, the proposed rule would add three entries to this list of drug products.

    DATES:

    Submit either electronic or written comments on the proposed rule by January 3, 2017.

    ADDRESSES:

    You may submit comments as follows:

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to http://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment 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 comments, that information will be posted on http://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment 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 comments submitted to the Division of Dockets Management, FDA will post your comment, 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-2016-N-2462 for “Amendments to the Regulation Regarding the List of Drug Products That Have Been Withdrawn or Removed From the Market for Reasons of Safety or Effectiveness.” Received comments 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 a comment with confidential information that you do not wish to be made publicly available, submit your comments 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 comments 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 comments 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:

    Edisa Gozun, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 5199, Silver Spring, MD 20993-0002, 301-796-3110.

    SUPPLEMENTARY INFORMATION: Table of Contents I. Executive Summary A. Purpose of the Regulatory Action B. Summary of the Major Provisions of the Proposed Regulatory Action C. Costs and Benefits II. Background A. Relevant Provisions of the Statute B. The List of Drug Products in § 216.24 C. Regulatory History of the List III. Description of the Proposed Rule IV. Legal Authority V. Analysis of Environmental Impact VI. Economic Analysis of Impacts VII. Paperwork Reduction Act of 1995 VIII. Federalism IX. References I. Executive Summary A. Purpose of the Regulatory Action

    FDA is proposing to amend its regulations to revise the list of drug products that have been withdrawn or removed from the market because the drug products or components of such drug products have been found to be unsafe or not effective (referred to as “the withdrawn or removed list” or “the list”) (§ 216.24 (21 CFR 216.24)). Drugs appearing on the withdrawn or removed list may not be compounded under the exemptions provided by sections 503A and 503B of the FD&C Act (21 U.S.C. 353a and 353b).

    The Agency is proposing to add three entries (all drug products containing aprotinin, all drug products containing bromocriptine mesylate, and all intravenous drug products containing greater than a 16 milligram (mg) single dose of ondansetron hydrochloride) as described in this document to the list in § 216.24 of drug products that cannot be compounded for human use under the exemptions provided by either section 503A or 503B of the FD&C Act because they have been withdrawn or removed from the market because such drug products or components of such drug products have been found to be unsafe or not effective.

    B. Summary of the Major Provisions of the Proposed Regulatory Action

    We are proposing that the following drugs that have been withdrawn or removed from the market because such drug products have been found to be unsafe or not effective be added to the list in § 216.24. The specific entries proposed for addition to the list for each of these drugs are provided as follows:

    Aprotinin: All drug products containing aprotinin.

    Bromocriptine mesylate: All drug products containing bromocriptine mesylate for prevention of physiological lactation.

    Ondansetron hydrochloride: All intravenous drug products containing greater than a 16 mg single dose of ondansetron hydrochloride.

    C. Costs and Benefits

    The Agency is not aware of any routine use of the drug products that FDA is proposing to add to the the withdrawn or removed list and, therefore, does not estimate any compliance costs or loss of sales as a result of the prohibition against compounding these drug products for human use. The Agency has determined that this rulemaking is not a significant regulatory action as defined by Executive Order 12866.

    II. Background A. Relevant Provisions of the Statute

    Section 503A of the FD&C Act describes the conditions that must be satisfied for human drug products compounded by a licensed pharmacist or licensed physician to be exempt from the following three sections of the FD&C Act: (1) Section 501(a)(2)(B) (21 U.S.C. 351(a)(2)(B)) (concerning current good manufacturing practice); (2) section 502(f)(1) (21 U.S.C. 352(f)(1)) (concerning the labeling of drugs with adequate directions for use); and (3) section 505 (21 U.S.C. 355) (concerning the approval of drugs under new drug applications (NDAs) or abbreviated new drug applications (ANDAs)).

    In addition, section 503B of the FD&C Act describes the conditions that must be satisfied for a drug compounded for human use by or under the direct supervision of a licensed pharmacist in an outsourcing facility to be exempt from three sections of the FD&C Act: (1) Section 502(f)(1), (2) section 505, and (3) section 582 (21 U.S.C. 360eee-1) (concerning drug supply chain security).

    One of the conditions that must be satisfied to qualify for the exemptions under both sections 503A and 503B of the FD&C Act is that the compounder does not compound a drug product that appears on a list published by the Secretary of drug products that have been withdrawn or removed from the market because such drug products or components of such drug products have been found to be unsafe or not effective (withdrawn or removed list) (see sections 503A(b)(1)(C), 503B(a)(4), and 503B(a)(11) of the FD&C Act).

    B. The List of Drug Products in § 216.24

    The drug products listed in § 216.24 (the withdrawn or removed list) have been withdrawn or removed from the market because they have been found to be unsafe or not effective and are ineligible for the exemptions set forth in sections 503A and 503B of the FD&C Act. A drug product that is included in the list codified at § 216.24 is not eligible for the exemptions provided in section 503A(a) of the FD&C Act, and is subject to sections 501(a)(2)(B), 502(f)(1), and 505 of the FD&C Act, in addition to other applicable provisions, if compounded. In addition, a drug that is included in the list codified at § 216.24 cannot qualify for the exemptions provided in section 503B(a) of the FD&C Act, and is subject to sections 502(f)(1), 505, and 582 of the FD&C Act, in addition to other applicable provisions, if compounded.

    C. Regulatory History of the List

    Following the addition of section 503A to the FD&C Act on November 21, 1997, through the enactment of the Food and Drug Administration Modernization Act of 1997 (Pub. L. 105-115), FDA proposed a rule in the Federal Register of October 8, 1998 (63 FR 54082), to establish the original list of drug products that have been withdrawn or removed from the market because the drug products or the components of such drug products have been found to be unsafe or not effective (1998 proposed rule) and therefore were not permitted to be compounded for human use under the exemptions provided by section 503A(a).

    In the Federal Register of March 8, 1999 (64 FR 10944), FDA published a final rule that codified the original list in § 216.24 (1999 final rule).

    Following the addition of section 503B to the FD&C Act on November 27, 2013, through the enactment of the Drug Quality and Security Act (Pub. L. 113-54), FDA proposed to amend the list in § 216.24 on July 2, 2014 (79 FR 37687); FDA published the final rule to amend § 216.24 in the Federal Register of October 7, 2016 (81 FR 69668) (2016 final rule). Given that nearly identical criteria apply for a drug to be included on the list referred to in section 503A(b)(1)(C) and the list referred to in section 503B(a)(4) of the FD&C Act, FDA revised and updated the list at § 216.24 to clarify that it applies for purposes of both sections 503A and 503B.

    III. Description of the Proposed Rule

    FDA is proposing to amend § 216.24 to add three drug products, described in the following paragraphs, that have been withdrawn or removed from the market because such drug products or components of such drug products have been found to be unsafe or not effective.

    As with the 1999 final rule establishing the original list, and the 2016 final rule revising that list, the primary focus of this proposed rule is on drug products that have been withdrawn or removed from the market because they have been found to be unsafe. FDA may propose at a later date to add other drug products to the list that have been withdrawn or removed from the market because they have been found to be not effective, or to update the list as new information becomes available to the Agency regarding products that were removed from the market because they have been found to be unsafe.

    The following drugs proposed for inclusion in § 216.24 are arranged alphabetically by the established names of the active ingredients contained in the drug products that have been withdrawn or removed from the market because such drug products or components of such drug products have been found to be unsafe or not effective. For some of the drug products, the proprietary or trade names of some or all of the drug products that contained the active ingredient are also given in the preamble paragraphs describing the withdrawn or removed drug products. In some cases, the withdrawn or removed drug products are identified according to the established name of the active ingredient, listed as a particular salt or ester of the active moiety. The following list includes the specific drug entry FDA is proposing to add to § 216.24, as well as a brief summary of the reasons why each drug is being proposed for inclusion.

    a. Aprotinin: All drug products containing aprotinin.

    Bayer suspended marketing of aprotinin (TRASYLOL, NDA 20304) in November 2007 for safety reasons. TRASYLOL, NDA 20304, was approved on December 29, 1993. The indication for TRASYLOL, NDA 20304, was for “prophylactic use to reduce perioperative blood loss and the need for blood transfusion in patients undergoing cardiopulmonary bypass in the course of coronary artery bypass graft surgery who are at increased risk for blood loss and blood transfusion.” Prominent known adverse reactions associated with the use of the drug included anaphylactic reactions (with some deaths reported) and impaired renal function. In January 2006, Mangano et al. published a report that described the results from a retrospective analysis of the use of aprotinin compared to two other antifibrinolytic drugs (tranexamic acid and aminocaproic acid) or no antifibrinolytic drugs in 4,374 patients undergoing cardiac surgery (Ref. 1). The conclusions were that there was a statistically greater likelihood of the development of renal dysfunction and the need for hemodialysis, stroke, encephalopathy, myocardial infarction, and congestive heart failure in patients treated with aprotinin than with the other antifibrinolytic drugs or no antifibrinolytic drugs. On February 8, 2006, FDA issued a Public Health Advisory on TRASYLOL, NDA 20304, that called attention to this new information (Ref. 2). On September 21, 2006, FDA convened a meeting of its Cardiovascular and Renal Advisory Committee to evaluate these and other data for the drug (see http://www.fda.gov/ohrms/dockets/ac/cder07.htm#CardiovascularRenal for meeting documents from the September 21, 2006, Cardiovascular and Renal Advisory Committee meeting). The Cardiovascular and Renal Advisory Committee voted that the benefits of TRASYLOL, NDA 20304, compared to its risks warranted continued approvability for the indication (Yes, 18; No, 0; Abstain, 1). Before the advisory committee meeting, the sponsor had funded a study that evaluated a medical database for the outcomes of patients undergoing coronary artery bypass graft surgery (CABG) treated with aprotinin or other antifibrinolytics, which concluded that there was an increased risk of in-hospital death in the aprotinin-treated patients compared to those in patients treated with aminocaproic acid. This information was subsequently published in 2008 by Schneeweiss et al. (Ref. 3). In 2007, Mangano et al. published a report in 3,876 patients undergoing CABG surgery describing a higher mortality after 5 years for those treated with aprotinin compared to those treated with no antifibrinolytic drugs (Ref. 4). In the 2007 Mangano study, patients treated with either tranexamic acid or aminocaproic acid did not experience a higher mortality at 5 years compared to patients treated with no antifibrinolytic drug. These data led to a reconvening of the Cardiovascular and Renal Advisory Committee in a joint meeting with the Drug Safety and Risk Management Advisory Committee on September 12, 2007 (joint meeting), at which these and other data were reviewed (see http://www.fda.gov/ohrms/dockets/ac/cder07.htm#CardiovascularRenal for meeting documents from the September 12, 2007, Cardiovascular and Renal Advisory Committee meeting). The Committees at the joint meeting were informed that there was an ongoing prospective randomized trial of aprotinin, tranexamic acid, and aminocaproic acid in patients undergoing CABG surgery with cardiopulmonary bypass in Canada (named the BART study), but that the results would not be available for several years. Some of the Committee members at the joint meeting stated that the issue should be revisited once the data from the BART study were available. The Advisory Committees at the joint meeting voted that TRASYLOL, NDA 20304, should continue to be authorized to be marketed in the United States. Shortly after the joint meeting, FDA was informed that the Data Monitoring and Safety Committee for the BART study had recommended that the BART trial be terminated early because there appeared to be a greater frequency of death in patients treated with aprotinin (6.0 percent) compared to those treated in the combined tranexamic acid plus aminocaproic acid group (3.9 percent). The study was subsequently published in 2008 by Fergusson (Ref. 5). On October 25, 2007, FDA issued a Safety Alert for Human Medical Products alerting the medical community about the preliminary data from the BART trial (Ref. 6). On November 5, 2007, FDA issued a press release stating that, at the Agency's request, the sponsor had made a decision to suspend the marketing of TRASYLOL, NDA 20304, pending a review of the BART data for safety (Ref. 7). Although some of the data from the BART trial were submitted to FDA and the sponsor submitted its analysis of the data that was made available to the company, FDA was never successful in obtaining the raw data from the trial. Therefore, FDA was not able to conduct its own analyses of the trial data. TRASYLOL, NDA 20304, has not returned to the U.S. market since the sponsor announced its decision to suspend marketing in 2007. Aprotinin was made available by the sponsor for the treatment of certain surgical patients with an established medical need using a treatment protocol under an investigational new drug application (IND) (Ref. 8). Expanded access to aprotinin through this treatment protocol is no longer available (see https://clinicaltrials.gov/ct2/show/NCT00611845?term=aprotinin&rank=4). FDA is not aware of any data that would give us reason to believe that the safety issues identified as having been associated with aprotinin should be restricted to a particular formulation, concentration, indication, route of administration, or dosage form. For these reasons, FDA is proposing to include all drug products containing aprotinin on the withdrawn or removed list.

    b. Bromocriptine mesylate: All drug products containing bromocriptine mesylate for prevention of physiological lactation.

    Bromocriptine mesylate was associated with risks of hypertension, seizures, and cardiovascular accidents, and the unfavorable benefit-risk balance was specific to the use of bromocriptine mesylate for the prevention of physiological lactation. In 1980, PARLODEL (bromocriptine mesylate) was approved for the prevention of physiological lactation as an acceptable alternative to estrogenic therapy. Subsequently, FDA received postmarket reports of serious and life-threatening adverse reactions (hypertension, seizures, and cerebrovascular accidents) associated with the use of bromocriptine mesylate to suppress lactation. According to the approved labeling for PARLODEL, dated July 15, 1988 (Ref. 9), serious adverse reactions reported in postpartum women included 50 cases of hypertension, 38 cases of seizures (including 4 cases of status epilepticus), 15 cases of strokes, and 3 cases of myocardial infarction. These cases were discussed at a 1989 Fertility and Maternal Health Drugs Advisory Committee meeting (Ref. 10). FDA presented reports of its safety findings, which included 28 reports of hypertension, 36 reports of seizures, and 19 reports of cerebrovascular accidents. FDA had received 85 cases of serious adverse events, including 10 deaths, since the approval of bromocriptine mesylate for lactation suppression in 1980 (August 23, 1994 (59 FR 43347)). The Fertility and Maternal Health Drugs Advisory Committee recommended that no drug then labeled for lactation suppression including bromocriptine mesylate be used for this indication. FDA subsequently asked that all manufacturers of these drugs voluntarily remove this indication from drug labeling. All but Sandoz, the manufacturer of PARLODEL, complied with FDA's request. In a document published in the Federal Register of August 23, 1994, FDA concluded that the risks of hypertension, seizures, and cardiovascular accidents outweighed the product's marginal benefit in preventing postpartum lactation. Accordingly, FDA proposed to withdraw approval of the indication recommending bromocriptine mesylate for preventing physiological lactation in the NDA for PARLODEL, under section 505(e) of the FD&C Act, on the basis that the drug is no longer shown to be safe for this indication. FDA withdrew approval of PARLODEL for the indication of prevention of physiological lactation in a document published in the Federal Register of January 17, 1995 (60 FR 3404). Withdrawal of PARLODEL's indication for the prevention of physiological lactation became effective on February 16, 1995. FDA's review of the withdrawal indicates that the withdrawal of bromocriptine mesylate for prevention of physiological lactation was fundamentally based on an unfavorable benefit-risk balance specific to this indication and not to other approved indications (such as treatment of Parkinson's disease, acromegaly, and prolactin-secreting adenomas). For this reason, FDA is proposing to include all drug products containing bromocriptine mesylate for prevention of physiological lactation on the withdrawn or removed list.

    c. Ondansetron hydrochloride: All intravenous drug products containing greater than a 16 mg single dose of ondansetron hydrochloride.

    Ondansetron (ondansetron hydrochloride (HCl)) Injection, USP, 32 mg, in 50 milliliters (mL), single intravenous (IV) dose, was associated with a specific type of irregular heart rhythm called QT interval prolongation, and the data suggest that any dose above the maximum recommendation of 16 mg per dose intravenously has the potential for increased risk of QT prolongation. In September 2011, FDA issued a Drug Safety Communication noting concerns that the 32 mg single IV dose of ZOFRAN (ondansetron HCl) and generic versions of that product could increase the risk of abnormal changes in the electrical activity of the heart, which could result in a potentially fatal abnormal heart rhythm (Ref. 11). Based on data subsequently collected from a study conducted at FDA's request by ZOFRAN's sponsor, GlaxoSmithKline (GSK), that identified a significant QT prolongation effect in connection with the 32 mg single IV dose, FDA approved GSK's supplemental application to remove the 32 mg single IV dose information from the labeling for ZOFRAN and has worked with manufacturers of all 32 mg single IV dose ondansetron HCl products to have them removed from the market. On June 29, 2012, FDA issued a Drug Safety Communication to notify health care professionals that the 32 mg single IV dose of ondansetron HCl, indicated for prevention of nausea and vomiting associated with initial and repeat courses of emetogenic cancer chemotherapy in adult patients, should be avoided due to the risk of QT interval prolongation, which can lead to Torsades de Pointes, an abnormal, potentially fatal heart rhythm (Ref. 12). Subsequently, FDA informed the holders of one NDA and four ANDAs for ondansetron HCl that the Agency believes that, in light of the safety concern associated with ondansetron HCl in the 32 mg single IV dose, these drug products should be removed from the market. The application holders agreed to voluntarily remove their respective 32 mg single IV dose ondansetron HCl products from the market and requested that FDA withdraw approval of their respective applications under 21 CFR 314.150(d). On December 4, 2012, FDA issued an updated Drug Safety Communication alerting health care professionals that these products would be removed from the market because of their potential for serious cardiac risks (Ref. 13). In the Federal Register of June 10, 2015 (80 FR 32966), FDA announced that it was withdrawing the approval of these five applications. On the same day, in a different document in the Federal Register (80 FR 32962), FDA announced its determination under 21 CFR 314.161 and 314.162(a)(2) that the NDA for Ondansetron (ondansetron HCl) Injection, USP, 32 mg/50 mL, single IV dose was withdrawn from sale for reasons of safety. As explained in the review of ondansetron HCl 32 mg single IV dose for the withdrawn or removed list (see tab 5 of the FDA briefing document for the June 17-18, 2015, Pharmacy Compounding Advisory Committee, available at http://www.fda.gov/AdvisoryCommittees/CommitteesMeetingMaterials/Drugs/PharmacyCompoundingAdvisoryCommittee/ucm431285.htm), for those approved products for IV ondansetron HCl that remain on the market, the current dosage and administration recommendation for adults and pediatric patients (6 months to 18 years) is three 0.15 mg/kilogram doses, up to a maximum of 16 mg per dose, infused intravenously over 15 minutes, and any dose above the maximum recommended 16 mg per IV dose has the potential for increased risk of QT prolongation. For these reasons, FDA is proposing to include all IV drug products containing greater than a 16 mg single dose of ondansetron HCl on the withdrawn or removed list.

    On June 17, 2015, FDA presented these three proposed entries to the Pharmacy Compounding Advisory Committee (see the Federal Register of May 22, 2015 (80 FR 29717)). In addition to these three proposed entries, FDA presented a potential entry for all drug products containing more than 325 mg of acetaminophen per dosage unit to the Pharmacy Compounding Advisory Committee. The addition of all drug products containing more than 325 mg of acetaminophen per dosage unit to the list remains under consideration by the Agency.

    The Pharmacy Compounding Advisory Committee voted in favor of including each of FDA's four proposed entries on the list. Although an open public hearing session was scheduled at this meeting to allow members of the public to present their views and opinions on the proposed entries to the committee members and the Agency prior to the vote by the Pharmacy Compounding Advisory Committee, no members of the public signed up to participate. A transcript of the June 2015 Pharmacy Compounding Advisory Committee meeting and briefing information that includes reviews and background on the proposed entries may be found at the Division of Dockets Management (see ADDRESSES) and at http://www.fda.gov/AdvisoryCommittees/CommitteesMeetingMaterials/Drugs/PharmacyCompoundingAdvisoryCommittee/ucm431285.htm.

    IV. Legal Authority

    Sections 503A and 503B of the FD&C Act provide the principal legal authority for this proposed rule. As described previously in the Background section of this document, section 503A of the FD&C Act describes the conditions that must be satisfied for human drug products compounded by a licensed pharmacist or licensed physician to be exempt from three sections of the FD&C Act (sections 501(a)(2)(B), 502(f)(1), and 505). One of the conditions that must be satisfied to qualify for the exemptions under section 503A of the FD&C Act is that the licensed pharmacist or licensed physician does not compound a drug product that appears on a list published by the Secretary in the Federal Register of drug products that have been withdrawn or removed from the market because such drug products or components of such drug products have been found to be unsafe or not effective (see section 503A(b)(1)(C) of the FD&C Act). Section 503A(c)(1) of the FD&C Act also states that the Secretary shall issue regulations to implement section 503A, and that before issuing regulations to implement section 503A(b)(1)(C) pertaining to the withdrawn or removed rule, among other sections, the Secretary shall convene and consult an advisory committee on compounding unless the Secretary determines that the issuance of such regulations before consultation is necessary to protect the public health.

    Section 503B of the FD&C Act describes the conditions that must be satisfied for a drug compounded for human use by or under the direct supervision of a licensed pharmacist in an outsourcing facility to be exempt from three sections of the FD&C Act (sections 502(f)(1), 505, and 582). One of the conditions in section 503B of the FD&C Act that must be satisfied to qualify for the exemptions is that the drug does not appear on a list published by the Secretary of drugs that have been withdrawn or removed from the market because such drugs or components of such drugs have been found to be unsafe or not effective (see section 503B(a)(4)). To be eligible for the exemptions in section 503B, a drug must be compounded in an outsourcing facility in which the compounding of drugs occurs only in accordance with section 503B, including as provided in section 503B(a)(4).

    Thus, sections 503A and 503B of the FD&C Act, in conjunction with our general rulemaking authority in section 701(a) of the FD&C Act (21 U.S.C. 371(a)), serve as our principal legal authority for this proposed rule revising FDA's regulations on drug products withdrawn or removed from the market because the drug product or a component of the drug product have been found to be unsafe or not effective in § 216.24.

    V. Analysis of Environmental Impact

    We have determined under 21 CFR 25.30(h) 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.

    VI. Economic Analysis of Impacts

    We have examined the impacts of the proposed rule under Executive Order 12866, Executive Order 13563, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct us to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). We believe that this proposed rule is not a significant regulatory action as defined by Executive Order 12866.

    The Regulatory Flexibility Act requires us to analyze regulatory options that would minimize any significant impact of a rule on small entities. Because small businesses are not expected to incur any compliance costs or loss of sales due to this regulation, we propose to certify that the proposed rule will not have a significant economic impact on a substantial number of small entities.

    Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires us to prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $146 million, using the most current (2015) Implicit Price Deflator for the Gross Domestic Product. We do not expect this proposed rule to result in any 1-year expenditure that would meet or exceed this amount.

    This proposed rule would amend § 216.24 concerning human drug compounding. Specifically, the proposed rule would add to or modify the list of drug products that may not be compounded under the exemptions provided by sections 503A and 503B of the FD&C Act because the drug products have been withdrawn or removed from the market because such drug products or components of such drug products have been found to be unsafe or not effective (see section II of this document). We are proposing to add three entries to the list. We are not aware of any routine compounding for human use of the drug products that are the subject of this proposed rule, and therefore do not estimate any compliance costs or loss of sales if the proposal is adopted. However, we invite the submission of comments and solicit current compounding usage data for these drug products, if they are compounded for human use.

    Unless we certify that a rule will not have a significant economic impact on a substantial number of small entities, the Regulatory Flexibility Act requires us to analyze regulatory options to minimize any significant economic impact of a regulation on small entities. Most pharmacies meet the Small Business Administration definition of a small entity, which is defined as having annual sales less than $25.5 million for this industry. We are not aware of any routine compounding of these drug products and do not estimate any compliance costs or loss of sales to small businesses as a result of the prohibition against compounding these drug products. Therefore, we propose to certify that this proposed rule will not have a significant economic impact on a substantial number of small entities.

    VII. Paperwork Reduction Act of 1995

    FDA tentatively concludes that this proposed rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

    VIII. Federalism

    We have analyzed this proposed rule in accordance with the principles set forth in Executive Order 13132. We have determined that this proposed rule does not contain policies 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. Accordingly, we conclude that the rule does not contain policies that have federalism implications as defined in the Executive order and, consequently, a federalism summary impact statement is not required.

    IX. References

    The following references are on display in the Division of Dockets Management (see ADDRESSES) and are available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; they are also available electronically at http://www.regulations.gov. FDA has verified the Web site addresses, as of the date this document publishes in the Federal Register, but Web sites are subject to change over time.

    1. Mangano, D.T., I.C. Tudor, and C. Dietzel, “The Risk Associated With Aprotinin in Cardiac Surgery,” New England Journal of Medicine, 354(4):353-365, 2006. 2. FDA News Release, “FDA Issues Public Health Advisory for Trasylol” (February 8, 2006), available at http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/2006/ucm108592.htm. 3. Schneeweiss, S., J.D. Seeger, J. Landon, and A.M. Walker, “Aprotinin During Coronary-Artery Bypass Grafting and Risk of Death,” New England Journal of Medicine, 358:771-783, 2008. 4. Mangano, D.T., Y. Miao, A. Vuylsteke, et al., “Mortality Associated With Aprotinin During 5 Years Following Coronary Artery Bypass Graft Surgery,” Journal of the American Medical Association, 297(5):471-479, 2007. 5. Fergusson, D.A., P.C. Hébert, C.D. Mazer, et al., “A Comparison of Aprotinin and Lysine Analogues in High-Risk Cardiac Surgery,” New England Journal of Medicine, 358(22):2319-2331, 2008. 6. FDA Alert—Aprotinin Injection (Marketed as Trasylol) (October 25, 2007), available at http://www.fda.gov/Safety/MedWatch/SafetyInformation/SafetyAlertsforHumanMedicalProducts/ucm150815.htm. 7. FDA News Release, “FDA Requests Marketing Suspension of Trasylol” (November 5, 2007), available at http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/2007/ucm109021.htm. 8. FDA News Release, “Manufacturer Removes Remaining Stocks of Trasylol Access Limited to Investigational Use” (May 14, 2008), available at http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/2008/ucm116895.htm. 9. FDA-PARLODEL (bromocriptine mesylate) Information, available at http://www.fda.gov/downloads/AdvisoryCommittees/CommitteesMeetingMaterials/Drugs/PharmacyCompoundingAdvisoryCommittee/UCM449535.pdf. 10. FDA Fertility and Maternal Health Drugs Advisory Committee Meeting Minutes (June 1 and 2, 1989), available at http://www.fda.gov/downloads/AdvisoryCommittees/CommitteesMeetingMaterials/Drugs/PharmacyCompoundingAdvisoryCommittee/UCM449535.pdf. 11. FDA Drug Safety Communication—Abnormal Heart Rhythms May Be Associated with Use of Zofran (Ondansetron)(September 15, 2011), available at http://www.fda.gov/Drugs/DrugSafety/ucm271913.htm. 12. FDA Drug Safety Communication—New Information Regarding QT Prolongation with Ondansetron (Zofran) (June 29, 2012), available at http://www.fda.gov/Drugs/DrugSafety/ucm310190.htm. 13. FDA Drug Safety Communication—Updated Information on 32 mg Intravenous Ondansetron (Zofran) Dose and Pre-Mixed Ondansetron Products (December 4, 2012), available at http://www.fda.gov/Drugs/DrugSafety/ucm330049.htm. List of Subjects in 21 CFR Part 216

    Drugs, Prescription drugs.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, it is proposed that 21 CFR part 216 be amended as follows:

    PART 216—HUMAN DRUG COMPOUNDING 1. The authority citation for part 216 continues to read as follows: Authority:

    21 U.S.C. 351, 352, 353a, 353b, 355, and 371.

    2. Amend § 216.24 by adding, in alphabetical order, to the list of drugs “Aprotinin”, “Bromocriptine mesylate”, and “Ondansetron hydrochloride” to read as follows:
    § 216.24 Drug products withdrawn or removed from the market for reasons of safety or effectiveness.

    Aprotinin: All drug products containing aprotinin.

    Bromocriptine mesylate: All drug products containing bromocriptine mesylate for prevention of physiological lactation.

    Ondansetron hydrochloride: All intravenous drug products containing greater than a 16 milligram single dose of ondansetron hydrochloride.

    Dated: October 11, 2016. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2016-25005 Filed 10-17-16; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF COMMERCE United States Patent and Trademark Office 37 CFR Part 42 [Docket No. PTO-P-2016-0029] RIN 0651-AD10 Rule Recognizing Privileged Communications Between Clients and Patent Practitioners at the Patent Trial and Appeal Board AGENCY:

    Patent Trial and Appeal Board, United States Patent and Trademark Office, U.S. Department of Commerce.

    ACTION:

    Proposed rule.

    SUMMARY:

    This proposed rule would amend the rules of practice before the Patent Trial and Appeal Board to recognize that, in connection with discovery conducted in certain proceedings at the United States Patent and Trademark Office (USPTO or Office), communications between U.S. patent agents or foreign patent practitioners and their clients are privileged to the same extent as communications between clients and U.S. attorneys. The rule would apply to inter partes review, post-grant review, the transitional program for covered business method patents, and derivation proceedings. This rule would clarify the protection afforded to such communications, which is currently not addressed in the rules governing Board proceedings at the USPTO. This new rule will not affect the duty of disclosure and candor before the Office under 37 CFR 1.56.

    DATES:

    Comment date: The Office solicits comments from the public on this proposed rulemaking. Written comments must be received on or before December 19, 2016 to ensure consideration.

    ADDRESSES:

    Comments should be sent by electronic mail message over the Internet addressed to: [email protected] Comments may also be submitted by postal mail addressed to: Mail Stop OPIA Director of the United States Patent and Trademark Office, P.O. Box 1450, Alexandria, VA 22313-1450, marked to the attention of “Soma Saha, Patent Attorney, Patent Trial Proposed Rule on Privilege.”

    Comments may also be sent by electronic mail message over the Internet via the Federal eRulemaking Portal at http://www.regulations.gov. See the Federal eRulemaking Portal Web site for additional instructions on providing comments via the Federal e-Rulemaking Portal.

    Although comments may be submitted by postal mail, the Office prefers to receive comments by electronic mail message to be able to more easily share all comments with the public. The Office prefers the comments to be submitted in plain text, but also accepts comments submitted in ADOBE® portable document format or MICROSOFT WORD® format. Comments not submitted electronically should be submitted on paper in a format that accommodates digital scanning into ADOBE® portable document format.

    The comments will be available for public inspection at the Office of Policy and International Affairs, currently located in Madison East, Second Floor, 600 Dulany Street, Alexandria, Virginia. Comments also will be available for viewing via the Office's Internet Web site at http://www.uspto.gov/patents/law/comments/index.jsp and at http://www.regulations.gov. Because comments will be made available for public inspection, information that the submitter does not desire to be made public, such as address or phone number, should not be included in the comments.

    FOR FURTHER INFORMATION CONTACT:

    Soma Saha, Patent Attorney, by email at [email protected] or by telephone at (571) 272-8652; or Edward Elliott, Attorney Advisor, by email at [email protected] or by telephone at (571) 272-7024.

    SUPPLEMENTARY INFORMATION:

    Purpose: This proposed rule would amend the rules of practice before the Patent Trial and Appeal Board (PTAB) to recognize that communications between non-attorney U.S. patent agents or foreign patent practitioners and their clients that pertain to authorized practice before the United States Patent and Trademark Office (Office or USPTO) are privileged to the same extent as communications of that sort conducted between clients and U.S. attorneys. Under the proposed rule, those communications would be protected from discovery in trial practice proceedings at the USPTO. The proposed rule would apply to inter partes review (IPR), post-grant review (PGR), the transitional program for covered business method patents (CBM), and derivation proceedings. Currently, the rules governing proceedings at the USPTO do not address the privilege of communications with patent practitioners, and questions regarding that matter are decided on a case-by-case basis under common law principles. This new rule will not affect the duty of disclosure and candor before the Office under 37 CFR 1.56.

    Background: Within this notice, the term “patent practitioner” includes both those authorized to practice patent matters before the USPTO and those authorized to practice patent matters in foreign jurisdictions. When referring to these groups separately, the terms “U.S. or domestic patent practitioners” and “foreign patent practitioners” will be used, respectively.

    In February 2015, the USPTO held a roundtable and solicited comments on attorney-client privilege issues. See Notice of Roundtable and Request for Comments on Domestic and International Issues Related to Privileged Communications Between Patent Practitioners and Their Clients, 80 FR 3953 (Jan. 26, 2015). As part of that process, the USPTO requested comments on whether it should recognize that communications between patent applicants and owners and their U.S. patent agents or foreign patent practitioners are privileged to the same extent as communications between U.S. patent attorneys and patent applicants and owners. Respondents unanimously supported a rule recognizing such privilege. See USPTO, Summary of Roundtable and Written Comments, available at http://www.uspto.gov/sites/default/files/documents/Summary%20of%20Privileged%20Communication%20Roundtable.pdf (“Privilege Report”).

    The USPTO administers various proceedings that entail discovery procedures, namely the IPR, PGR, and transitional program for CBM patents. In addition, the derivation proceedings provided for by the Leahy-Smith America Invents Act, Public Law 112-29, 125 Stat. 284 (2011) (AIA) permit discovery. Questions regarding privilege issues may arise in the course of discovery, and as some roundtable commenters noted, rules regarding privilege for U.S. patent agents and foreign practitioners during discovery in PTAB proceedings are not well defined.

    Current Practice: PTAB proceedings are subject to the Federal Rules of Evidence (FRE), which include rules on attorney-client privilege. See 37 CFR 42.62(a). Accordingly, privilege may be asserted in PTAB proceedings by licensed attorneys. However, the FRE does not explicitly address privilege for communications with non-attorney U.S. patent agents or with foreign patent practitioners.

    The rules governing PTAB practice likewise do not address this matter, and when it arises, PTAB Administrative Law Judges make legal determinations as to which communications may be protected from disclosure on a case-by-case basis, based on common law. See GEA Process Engineering, Inc. v. Steuben Foods, Inc., IPR2014-00041, Paper 117 (PTAB 2014). U.S. courts have devised several different approaches to determine under what circumstances communications with these practitioners are privileged. As the Privilege Report notes, the common law on privilege for domestic and foreign patent practitioners varies across jurisdictions. Different approaches are taken, and results sometimes conflict. This may lead to administrative inefficiencies and inconsistencies in outcomes, as PTAB must select which set of common law rules to follow. (It is also noted that Administrative Law Judges in other agencies recognize certain confidential communications with a patent agent as privileged. See, e.g., USITC Inv. No. 337-TA-339, slip op. at 2, 1992 WL 811804 (ITC 1992) (finding that confidential communications between a U.S. patent agent and his client in connection with a patent prosecution are privileged).) The Federal Circuit recently recognized that attorney-client privilege applies to U.S. patent agents acting within the scope of their authorized practice. See In re Queen's University at Kingston, PARTEQ Research and Development Innovations, No. 2015-145 (Fed. Cir. 2016).

    The Office has strong policy reasons to establish a privilege rule governing trial proceedings before PTAB. Such a rule would help ensure consistent outcomes with respect to privilege matters that arise at the Office, would improve public understanding of how privilege questions are decided before PTAB, and would help further judicial economy by providing PTAB judges with a clear, concise statement of when privilege applies.

    Public Comments: In August 2015, the USPTO published in the Federal Register a proposed rule amending the rules for trial practice before the Office. See Amendments to the Rules of Practice for Trials Before the Patent Trial and Appeal Board, 80 FR 50719 (Aug. 20, 2015). Included in that proposed rule was a request for comments on the advisability of a privilege rule for PTAB proceedings. The comments submitted in response to that request are available on the USPTO Web site at http://www.uspto.gov/patents-application-process/patent-trial-and-appeal-board/comments-amendments-rules-practice-trials.

    Those responding to the request universally agreed that a privilege rule for PTAB proceedings should be promulgated. Respondents overwhelmingly favored promulgating such a rule, with some noting that it would lead to clarity and consistency and “can reduce uncertainty and mitigate discovery costs.” See Letter from Frederick W. Mau II on behalf of Toyota Motor Corp., David B. Kelley on behalf of Ford Motor Co., and Mark Duell on behalf of American Honda Motor Co., Inc., RE: Comments on Amendments to the Rules of Practice for Trials Before the Patent Trial and Appeal Board, p. 4-5 (Oct. 16, 2015). Others suggested that “[i]f patent agents are not entitled to have their communications be considered privileged, however, then their utility—and associated cost savings for stakeholders—is lost.” See Letter from Sharon A. Israel, President of the American Intellectual Property Law Assoc., RE: Response to Proposed “Amendments to the Rules of Practice for Trials Before the Patent Trial and Appeal Board,” 80 FR 50720 (August 20, 2015), p. 15-16 (Oct. 21, 2015).

    Commenters said it “would be particularly useful for patent agents['] communications to be explicitly protected in the discovery rules for post-grant proceedings (e.g., inter parties [sic] review) before the USPTO.” See Letter from Dorothy R. Auth, President of the New York Intellectual Property Law Assoc., RE: NYIPLA Comments in Response to “Amendments to the Rules of Practice for Trials Before the Patent Trial and Appeal Board,Federal Register Notice, August 20, 2015, Vol. 80, No. 161 (80 FR 50720), p. 6-9 (Nov. 18, 2015). Commenters suggested that the rule should extend at least to communications made in connection with acts that patent agents are authorized to perform in their particular jurisdictions, such as prosecuting patent applications. The USPTO agrees that the scope of a privilege rule should be defined by the activities that the agent is authorized to carry out. Others suggested that it should be “a simple rule . . . that explicitly recognize[s] privilege for communications between patent applicants or owners and their domestic patent agents or foreign professional patent practitioners under the same circumstances as such privilege is recognized for communications between applicants or owners and U.S. attorneys.” See Letter from Andrew D. Meikle, President of the U.S. Section of the International Federation of Intellectual Property Attorneys (FICPI), RE: Comments on “Recognizing Privilege for Communications With Domestic Patent Agents and Foreign Patent Practitioners”, p. 4 (Nov. 24, 2015).

    According to these comments, “[t]his approach would provide the greatest uniformity and certainty, and avoid the need for the PTAB to engage in complex fact based analysis regarding application of the privilege under the common law.” Id. These views were echoed by a law professor who has studied this issue since 2008:

    The privilege should be as broad as the ordinary attorney-client privilege. It should cover not only U.S. patent agents, but also foreign legal representatives. While the best solution would be a privilege that applied in all legal tribunals—not only the PTAB, but also federal and state courts—adoption of a privilege only for the PTAB would be a valuable first step toward this goal.

    See Letter from John T. Cross, Professor of Law at University of Louisville, Possible Adoption of a Legal Representation Privilege in Matters Before the Patent Trial and Appeal Board, p. 2 (Sep. 9, 2015).

    The USPTO agrees with these views and believes the proposed rule reflects them. As a policy matter, open and frank discussions between practitioners and clients promotes effective legal representation before the Office.

    Discussion of Specific Rules

    Taking into consideration comments from the public and insight gained from practice, the Office proposes to amend 37 CFR 42 to add new section 42.57 that clarifies which patent practitioners are eligible for assertions of attorney-client privilege.

    The term “patent practitioner” is used to conform with existing terminology and avoid confusion with other terms used around the world, such as “IP Advisor” or “Patent Advisor.” It fits with practice elsewhere in Title 37, which refers to domestic “patent practitioners,” i.e., U.S. patent agents and patent attorneys registered under 37 CFR 11.6. This narrower meaning is appropriate for most sections of Title 37, which deal with practitioners admitted to practice before the USPTO. For the new rule only, the term also includes comparable foreign counterparts practicing before foreign patent offices.

    The rule would provide that the privilege only applies where the practitioner performs legal work authorized by the jurisdiction in which the practitioner practices. For instance, communications between clients and U.S. patent agents relating to patent application matters would be protected as privileged under the rule, but communications between these parties regarding litigation strategies would not be protected. The proposed rule also does not recognize privilege as applying to advice given by lay persons in jurisdictions that do not impose professional qualifications as a requirement to practice. However, the proposed rule can apply to communications from an in-house counsel who performs the functions of a patent attorney under appropriate circumstances, even though some civil law jurisdictions may not grant in-house counsel the privilege-type protections given to attorneys.

    The Office invites the public to provide any comments on the proposed rule to inform further action.

    Costs and Benefits: This rulemaking is not economically significant, and is not significant, under Executive Order 12866 (Sept. 30, 1993), as amended by Executive Order 13258 (Feb. 26, 2002) and Executive Order 13422 (Jan. 18, 2007).

    Rulemaking Considerations A. Administrative Procedure Act (APA)

    This proposed rule revises the rules of practice before PTAB to recognize that communications between non-attorney or foreign patent practitioners and their clients that pertain to authorized practice before the USPTO are privileged. The changes in this rulemaking involve rules of agency practice and procedure and/or interpretive rules. See Nat'l Org. of Veterans' Advocates v. Secretary of Veterans Affairs, 260 F.3d 1365, 1375 (Fed. Cir. 2001) (rule that clarifies interpretation of a statute is interpretive); Bachow Commc'ns Inc. v. F.C.C., 237 F.3d 683, 690 (D.C. Cir. 2001) (rules governing an application process are procedural under the Administrative Procedure Act); Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 2001) (rules for handling appeals were procedural where they did not change the substantive requirements for reviewing claims).

    Accordingly, prior notice and opportunity for public comment are not required pursuant to 5 U.S.C. 553(b) or (c), or any other law. See Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 2(b)(2)(B), do not require notice and comment rulemaking for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” (quoting 5 U.S.C. 553(b)(A))). However, the Office chose to seek public comment before implementing the rule to benefit from the public's input.

    B. Regulatory Flexibility Act

    For the reasons set forth herein, the Deputy General Counsel for General Law of the USPTO has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 605(b).

    The changes proposed in this rule are to revise the rules of practice before PTAB to explicitly recognize that communications between non-attorney or foreign patent practitioners and their clients that pertain to authorized practice before the USPTO or foreign patent offices are privileged and to define those persons who may avail themselves of this privilege. These proposed changes are expected to create no additional burden to those practicing before the Board as this rule merely clarifies rights and protections for the practitioner and client and does not impose a change in practice or requirements. In fact, this rule may produce a small benefit from a reduction in uncertainty and mitigation of discovery costs. For the foregoing reasons, the changes proposed in this rule will not have a significant economic impact on a substantial number of small entities.

    C. Executive Order 12866 (Regulatory Planning and Review)

    This rulemaking has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993).

    D. Executive Order 13563 (Improving Regulation and Regulatory Review)

    The Office has complied with Executive Order 13563. Specifically, the Office has, to the extent feasible and applicable: (1) Made a reasoned determination that the benefits justify the costs of the rule; (2) tailored the rule to impose the least burden on society consistent with obtaining the regulatory objectives; (3) selected a regulatory approach that maximizes net benefits; (4) specified performance objectives; (5) identified and assessed available alternatives; (6) involved the public in an open exchange of information and perspectives among experts in relevant disciplines, affected stakeholders in the private sector and the public as a whole, and provided on-line access to the rulemaking docket; (7) attempted to promote coordination, simplification, and harmonization across government agencies and identified goals designed to promote innovation; (8) considered approaches that reduce burdens and maintain flexibility and freedom of choice for the public; and (9) ensured the objectivity of scientific and technological information and processes.

    E. Executive Order 13132 (Federalism)

    This rulemaking does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

    F. Executive Order 13175 (Tribal Consultation)

    This rulemaking will not: (1) Have substantial direct effects on one or more Indian tribes; (2) impose substantial direct compliance costs on Indian tribal governments; or (3) preempt tribal law. Therefore, a tribal summary impact statement is not required under Executive Order 13175 (Nov. 6, 2000).

    G. Executive Order 13211 (Energy Effects)

    This rulemaking is not a significant energy action under Executive Order 13211 because this rulemaking is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001).

    H. Executive Order 12988 (Civil Justice Reform)

    This rulemaking meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden as set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996).

    I. Executive Order 13045 (Protection of Children)

    This rulemaking does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (Apr. 21, 1997).

    J. Executive Order 12630 (Taking of Private Property)

    This rulemaking will not affect a taking of private property or otherwise have taking implications under Executive Order 12630 (Mar. 15, 1988).

    K. Congressional Review Act

    Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.), prior to issuing any final rule, the USPTO will submit a report containing the rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the Government Accountability Office. The changes in this final rule are not expected to result in an annual effect on the economy of 100 million dollars or more, a major increase in costs or prices, or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, this final rule is not a “major rule” as defined in 5 U.S.C. 804(2).

    L. Unfunded Mandates Reform Act of 1995

    The changes set forth in this rulemaking do not involve a Federal intergovernmental mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, of 100 million dollars (as adjusted) or more in any one year, or a Federal private sector mandate that will result in the expenditure by the private sector of 100 million dollars (as adjusted) or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 1501 et seq.

    M. National Environmental Policy Act

    This rulemaking will not have any effect on the quality of the environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969. See 42 U.S.C. 4321 et seq.

    N. National Technology Transfer and Advancement Act

    The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are not applicable because this rulemaking does not contain provisions which involve the use of technical standards.

    O. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3549) requires that the Office consider the impact of paperwork and other information collection burdens imposed on the public. This proposed rule not does not involve any new information collection requirements that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3549). Any information collections associated with this rule have been previously approved under OMB control number 0651-0069.

    Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to, a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.

    List of Subjects in 37 CFR Part 42

    Administrative practice and procedure, inventions and patents.

    For the reasons set forth in the preamble, 37 CFR part 42 is proposed to be amended as follows:

    PART 42—TRIAL PRACTICE BEFORE THE PATENT TRIAL AND APPEAL BOARD 1. The authority citation for 37 CFR Part 42 continues to read as follows: Authority:

    35 U.S.C. 2(b)(2), 6, 21, 23, 41, 135, 311, 312, 316, 321-326; Pub. L. 112-29, 125 Stat. 284; and Pub. L. 112-274, 126 Stat. 2456.

    2. Add § 42.57 to read as follows:
    § 42.57 Privilege for patent practitioners.

    (a) Privileged communications. A communication between a client and a domestic or foreign patent practitioner that is reasonably necessary or incident to the scope of the patent practitioner's authority shall receive the same protections of privilege as if that communication were between a client and an attorney authorized to practice in the United States, including all limitations and exceptions.

    (b) Definitions. The term “domestic patent practitioner” means a person who is registered by the United States Patent and Trademark Office to practice before the agency under section 11.6. “Foreign patent practitioner” means a person who is authorized to provide legal advice on patent matters in a foreign jurisdiction, provided that the jurisdiction establishes professional qualifications and the practitioner satisfies them, and regardless of whether that jurisdiction provides privilege or an equivalent under its laws.

    Dated: October 12, 2016. Michelle K. Lee, Under Secretary of Commerce for Intellectual Property and Director of the United States Patent and Trademark Office.
    [FR Doc. 2016-25141 Filed 10-17-16; 8:45 am] BILLING CODE 3510-16-P
    LIBRARY OF CONGRESS Copyright Royalty Board 37 CFR Part 385 [Docket No. 16-CRB-0003-PR (2018-2022)] Determination of Rates and Terms for Making and Distributing Phonorecords (Phonorecords III); Comment Period Extension AGENCY:

    Copyright Royalty Board, Library of Congress.

    ACTION:

    Proposed rule; extension of comment period for reply comments.

    SUMMARY:

    The Copyright Royalty Judges announce that they will accept reply comments in response to comments they received about a proposed rule regarding rates and terms applicable during the upcoming rate period for the section 115 statutory license for making and distributing phonorecords of nondramatic musical works.

    DATES:

    Reply comments for the proposed rule published July 25, 2016 (81 FR 48371) are due no later than November 17, 2016.

    ADDRESSES:

    The proposed rule and the comments filed in response to it are posted on the agency's Web site (www.loc.gov/crb). The proposed rule is also posted at Regulations.gov (www.regulations.gov). Interested parties may submit reply comments via email to [email protected] Those who choose not to submit reply comments via email should see How to Submit Reply Comments in the SUPPLEMENTARY INFORMATION section below for online and physical addresses and further instructions.

    FOR FURTHER INFORMATION CONTACT:

    Kimberly Whittle, Attorney Advisor, by telephone at (202) 707-7658, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    On July 25, 2016, the Judges published a proposed rule and requested comments. 81 FR 48371. The proposed rule was based upon a partial settlement 1 regarding copyright royalty rates and terms applicable during the upcoming rate period for the section 115 statutory license for making and distributing phonorecords of nondramatic musical works. See Joint Motion to Adopt Partial Settlement, Docket No. 16-CRB-0003-PR (2018-2022) (June 15, 2016).

    1 The participants filing the motion were Church Music Publishers Association, Nashville Songwriters Association International, National Music Publishers Association, Harry Fox Agency, and Songwriters of North America, and licensees Universal Music Group and Warner Music Group.

    On or before August 24, 2016, the Judges received two timely comments, one from the American Association of Independent Music (A2IM) that supported it and one from Sony Music Entertainment (“Sony”) that supported it in part and opposed it in part.

    On August 30, 2016, the National Music Publishers' Association and the Nashville Songwriters Association International filed a joint Motion for Leave to Respond to the Comments and Objections of Sony Music Entertainment Concerning Proposed Settlement (Joint Motion). In the interest of promoting a more complete record with regard to the proposed rule, the Judges will grant the Joint Motion. In addition, the Judges hereby announce that they will accept, without additional motions required, additional reply comments, if any, to the comments filed by A2IM and Sony.

    The reply comments, if any, must be submitted no later than November 17, 2016.

    How To Submit Reply Comments

    Interested members of the public must submit reply comments to only one of the following addresses. If not submitting by email or online, commenters must submit an original of their reply comments, five paper copies, and an electronic version in searchable PDF format on a CD.

    Email: [email protected]; or

    Online: http://www.regulations.gov; or

    U.S. mail: Copyright Royalty Board, P.O. Box 70977, Washington, DC 20024-0977; or

    Overnight service (only USPS Express Mail is acceptable): Copyright Royalty Board, P.O. Box 70977, Washington, DC 20024-0977; or

    Commercial courier: Address package to: Copyright Royalty Board, Library of Congress, James Madison Memorial Building, LM-403, 101 Independence Avenue SE., Washington, DC 20559-6000. Deliver to: Congressional Courier Acceptance Site, 2nd Street NE. and D Street NE., Washington, DC; or

    Hand delivery: Library of Congress, James Madison Memorial Building, LM-401, 101 Independence Avenue SE., Washington, DC 20559-6000.

    Dated: October 12, 2016. Suzanne M. Barnett, Chief Copyright Royalty Judge.
    [FR Doc. 2016-25075 Filed 10-17-16; 8:45 am] BILLING CODE 1410-72-P
    DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 8a RIN 2900-AP49 Veterans' Mortgage Life Insurance—Coverage Amendment AGENCY:

    Department of Veterans Affairs.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Department of Veterans Affairs (VA) proposes to amend its regulations governing the Veterans' Mortgage Life Insurance (VMLI) program in order to provide VMLI-eligible individuals the option to lower their premiums by purchasing less than the minimum coverage amount required under current VA regulations. The proposed rule would also amend current VA regulations to reflect that the statutory maximum amount of coverage available under the VMLI program was previously increased to $200,000, to define the term “eligible individual,” and to clarify that eligibility for VMLI coverage has been extended to include servicemembers as well as veterans. These additional amendments are necessary to conform the existing regulations to current statutory provisions.

    DATES:

    Comments must be received on or before December 19, 2016.

    ADDRESSES:

    Written comments may be submitted through http://www.Regulations.gov; by mail or hand delivery to Director, Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Ave. NW., Room 1068, Washington, DC 20420; or by fax to (202) 273-9026. Comments should indicate that they are submitted in response to “RIN 2900-AP49—Veterans' Mortgage Life Insurance—Coverage Amendment.” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1068, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 for an appointment. (This is not a toll-free number.) In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at http://www.Regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Jeanne King, Attorney-Advisor, Insurance Service, Department of Veterans Affairs (310/290B), 5000 Wissahickon Avenue, P.O. Box 8079, Philadelphia, PA 19101, (215) 842-2000, ext. 4839. (This is not a toll-free number.)

    SUPPLEMENTARY INFORMATION:

    The Veterans' Mortgage Life Insurance (VMLI) program was established in 1971 to provide mortgage protection insurance to service-disabled veterans who receive Specially Adapted Housing Grants from VA. Under 38 U.S.C. 2106(g), the amount of VMLI coverage for a veteran is the amount necessary to pay the veteran's mortgage indebtedness in full, except as limited by section 2106(b) or “regulations prescribed by the Secretary under this section.” Section 2106(b) currently limits the amount of VMLI available to $200,000. Therefore, currently, a veteran who has a mortgage indebtedness that is greater than $200,000 and seeks VMLI must be covered in the amount of $200,000 and pay the corresponding premiums for such coverage. VA has concluded that requiring this level of coverage in such circumstance may cause some individuals to forego VMLI protection because they cannot afford the premiums. To address this specific problem and to allow veterans to pay lower premiums regardless of their mortgage indebtedness, VA proposes to exercise its explicit statutory authority set forth in section 2106(g) and amend its regulations to permit program participants to lower their premiums by carrying VMLI in an amount less than both the $200,000 statutory maximum and the amount necessary to pay the covered mortgage indebtedness in full.

    As noted, paying the premiums on the level of coverage required under current regulations can present a financial hardship to individuals insured under the program. We realize that allowing eligible individuals to carry an amount of VMLI lower than the amount outstanding on the mortgage loan may result in circumstances where an insured dies with a balance on the loan that exceeds the amount of VMLI in effect, which currently occurs when an individual's mortgage balance exceeds the statutory maximum level of coverage. In such a situation, the individual's survivors may have to assume payment on the mortgage. However, VA believes that it is preferable for individuals to participate in the VMLI program to the extent they can financially, rather than foregoing coverage entirely because they cannot afford it. If an eligible individual opts out of the program, and then dies with an outstanding balance on the loan, his or her survivors could ultimately be forced to assume an even greater indebtedness than if the individual had carried partial VMLI coverage.

    Individuals often seek to lower their VMLI premiums by requesting an amount of coverage less than both the statutory limit and the amount necessary to pay the mortgage indebtedness in full. For example, from January 1, 2005, to December 31, 2010, when the statutory coverage limit was $90,000, VA received 231 requests to terminate existing VMLI coverage. VA reviewed approximately 100 requests to determine if financial hardship was a factor in individuals' decisions to terminate coverage. Thirty percent of veterans who terminated their coverage during that period stated that the premium charged for their coverage was the main factor motivating their requests.

    Effective October 1, 2011, the Veterans' Benefits Act of 2010 raised the statutory maximum coverage for VMLI from $90,000 to $150,000, and to $200,000 after January 1, 2012. See Public Law 111-275, Title IV, § 407, 124 Stat. 2864, 2880. Depending on a veteran's age and mortgage balance, this statutory change could cause an individual's monthly premiums to increase by almost $400.00—from less than $460.00 to more than $850.00 per month. As such, VA has concluded that, because premiums for the new statutory maximum amount of $200,000 are considerably higher than premiums for the former maximum amount, an increasing number of individuals may terminate their VMLI coverage or decline coverage entirely unless VA offers options to buy a lesser amount of VMLI.

    To promptly address this problem, VA adopted an interim policy allowing insureds to select less than both the statutory maximum and their outstanding mortgage balance. VA implemented this interim policy to avoid unintended harm to program participants. VA now seeks to amend its regulations to make this policy permanent.

    In establishing the VMLI program, Congress intended to provide seriously disabled veterans with a reasonable level of mortgage protection insurance. If individuals decline coverage because they cannot afford the premiums, the purpose of the program is undermined. Therefore, VA proposes to amend its Part 8a regulations to reflect the new statutory maximum and provide program participants the option to select a more affordable level of coverage that is lower than both the statutory maximum and their outstanding mortgage balance. VA believes this change would benefit all VMLI-eligible individuals because it would provide needed flexibility in the program and empower veterans to decide what level of coverage they can afford. As explained above, VA has concluded that it is preferable for individuals to make their own financial decisions as to what level of VMLI they can afford, rather than foregoing coverage because they cannot afford a higher amount mandated by statute. Absent VA's proposed amendment, current regulations would likely prompt some veterans to decline VMLI coverage because they cannot afford the required premiums, ultimately forcing more survivors into greater mortgage debt than if partial VMLI coverage were available.

    We interpret 38 U.S.C. 2106 as authorizing VA to prescribe regulations permitting VMLI coverage in amounts less than the statutory maximum and the outstanding mortgage indebtedness. Section 2106(g) requires that VMLI participants carry the amount of insurance necessary to pay their mortgage indebtedness in full, but explicitly authorizes the Secretary to prescribe an exception to this requirement. Moreover, section 2106(b) imposes a cap of $200,000 in coverage but does not mandate that VMLI participants carry the maximum amount of coverage available. Therefore, VA's proposed amendments to its regulations are implicitly authorized by 38 U.S.C. 2106.

    The proposed amendment would exercise this authority by amending 38 CFR 8a.1(c) and 38 CFR 8a.2(a) to provide insureds with the option to select a more affordable level of coverage. We propose to revise the term “initial amount of insurance” in § 8a.1(c) to mean “the amount of insurance selected by the insured, which may be less than the statutory maximum of $200,000 and less than the amount necessary to pay the mortgage indebtedness in full.” This change would make clear that VMLI-eligible individuals are authorized to carry such VMLI coverage as they select, up to the lesser of the $200,000 statutory maximum or the amount necessary to pay their mortgage indebtedness in full. We would also amend § 8a.2(a) and (b)(1) and § 8a.4(b) and (c) to reflect that the current statutory maximum of VMLI coverage, as previously increased, is $200,000.

    The proposed amendments to 38 CFR 8a.4(b)-(c) removing “available to” and adding in its place “selected by” are designed to ensure conformity with this change by making clear that the amount of insurance on the life of the eligible individual may be a reduced amount selected by the eligible individual, up to the lesser of the $200,000 statutory maximum or the amount necessary to pay their mortgage indebtedness in full. For the reasons discussed above, these amendments would benefit veterans and their beneficiaries by adding needed flexibility to the program and empowering individuals to make financial decisions based on the level of VMLI coverage they can afford. While such decisions require veterans and their families to consider the financial risk of choosing a lower amount of VMLI that may not cover their mortgage indebtedness in full, we feel that such personal financial decisions are best left to veterans and their families. Accordingly, VA's proposed amendments seek to provide veterans with the flexibility to choose the level of VMLI coverage that meets their financial needs. In doing so, we seek to minimize the number of eligible individuals who opt out of the program for financial reasons, and reduce instances where a veteran's survivors must assume greater indebtedness than if the veteran had carried at least partial VMLI coverage. In short, VA has concluded that veterans should enjoy the option to obtain VMLI coverage tailored to their specific needs.

    We also propose a number of technical changes to 38 CFR part 8a to ensure consistency with current statutory authority. In the Housing and Economic Recovery Act of 2008, Congress extended eligibility for VMLI coverage to servicemembers in addition to veterans. See Public Law 110-289, section 2602, 122 Stat. 2654, 2858-2860. We propose to add a new definition of “eligible individual” at § 8a.1(f) to reflect this extension of eligibility for VMLI coverage and replace the term veteran with individual wherever appropriate in §§ 8a.1 through 8a.4. These substitutions would not cause any substantive change other than that brought about by Public Law 110-289.

    Additionally, we propose one technical change to 38 CFR 8a.2(b)(8), which currently prescribes, “[a]ll claims, arising out of the deaths of insured veterans occurring prior to (date of final publication), shall be subject to the provisions of paragraph (a) of this section then in effect which limited the amount of VMLI coverage to a lifetime maximum per eligible veteran.” The parenthetical “(date of final publication)” appears to have been erroneously maintained in the Code of Federal Regulations, rather than being replaced by the appropriate date. We are correcting this error by striking “(date of final publication)” and inserting “December 24, 1987,” which is the effective date of the final rule that codified that regulation. See 52 FR 26356-01 (July 14, 1987) (proposed); 52 FR 48681-02 (Dec. 24, 1987) (final). No substantive change is intended.

    We would also revise the authority citations at the end of § 8a.2 and § 8a.4 and add authority citations at the end of § 8a.1 and § 8a.3 to cite to 38 U.S.C. 501, 2101, 2101A, and 2106.

    Unfunded Mandates

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

    Paperwork Reduction Act

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

    Executive Orders 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12886 (Regulatory Planning and Review) defines a “significant regulatory action,” which requires review by the Office of Management and Budget (OMB), unless OMB waives such review, as “any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.”

    The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's Web site at http://www.va.gov/orpm/, by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.”

    Regulatory Flexibility Act

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

    Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance number and title for the program affected by this document is 64.103, Life Insurance for Veterans.

    Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Gina S. Farrisee, Deputy Chief of Staff, Department of Veterans Affairs, approved this document on October 7, 2016, for publication.

    Dated: October 7, 2016. Jeffrey Martin, Office Program Manager, Office of Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs. List of Subjects in 38 CFR Part 8a

    Life insurance, Mortgage insurance, Veterans.

    For the reasons stated in the preamble, VA proposes to amend 38 CFR part 8a as set forth below:

    PART 8a—VETERANS MORTGAGE LIFE INSURANCE 1. The authority citation for part 8a continues to read as follows: Authority:

    38 U.S.C. 501, and 2101 through 2106, unless otherwise noted.

    2. Amend § 8a.1 as follows: a. In paragraph (a), remove “veteran” each place it appears and add in its place “individual”; b. In paragraph (b), remove “veterans” the second time it appears and add in its place “individuals”; c. Revise paragraph (c); d. In paragraph (d), remove “veteran” and add in its place “individual”; e. In paragraph (e) introductory text, remove “veteran” and add in its place “individual”; f. Add paragraph (f); and g. Add an authority citation to the end of the section.

    The revision and additions read as follows:

    § 8a.1 Definitions.

    (c) The term initial amount of insurance means the amount of insurance selected by the insured, which may be less than the statutory maximum of $200,000 and less than the amount necessary to pay the mortgage indebtedness in full.

    (f) The term eligible individual means a person who has been determined by the Secretary to be eligible for benefits pursuant to 38 U.S.C. chapter 21.

    (Authority: 38 U.S.C. 501, 2101, 2101A, 2106)
    3. Amend § 8a.2 as follows: a. In paragraph (a), remove “veteran” each place it appears and add in its place “individual”, remove “$90,000” and add in its place “$200,000”, and add “an initial amount of insurance” between “authorized” and “up”; b. In paragraph (b)(1), remove “$90,000” and add in its place “$200,000”; c. In paragraph (b)(2), remove “veteran” and add in its place “individual”; d. In paragraph (b)(3), remove “veteran” each place it appears and add in its place “individual”; e. In paragraph (b)(4), remove “veteran” each place it appears and add in its place “individual”; f. In paragraph (b)(5), remove “veteran” and add in its place “individual”; g. In paragraph (b)(6), remove “veteran” each place it appears and add in its place “individual”; h. In paragraph (b)(7), remove “veterans” each place it appears and add in its place “individuals”; i. In paragraph (b)(8), remove “veteran” and add in its place “individual”, remove “veterans” and add in its place “individuals”, and remove “(date of final publication)” and add in its place “December 24, 1987”; j. In paragraph (c), remove “veteran” and add in its place “individual”; and k. Revise the authority citation at the end of section.

    The revision reads as follows:

    § 8a.2 Maximum amount of insurance. (Authority: 38 U.S.C. 501, 2101, 2101A, 2106)
    4. Amend § 8a.3 as follows: a. In paragraph (a), remove “veteran” each place it appears and add in its place “individual”; b. In paragraph (b), remove “veteran” each place it appears and add in its place “individual”; c. In paragraph (c), remove “a veteran” and add in its place “an individual”, and remove “the veteran” each place it appears and add in its place “the individual”; d. In paragraph (d), remove “veteran” each place it appears and add in its place “individual”; e. In paragraph (e), remove “veteran” each place it appears and add in its place “individual”; and f. Add an authority citation to the end of the section.

    The addition reads as follows:

    § 8a.3 Effective date. (Authority: 38 U.S.C. 501, 2101, 2101A, 2106)
    5. Amend § 8a.4 as follows: a. In paragraph (b), remove “$90,000” each place it appears and add in its place “$200,000”, remove “available to” each place it appears and add in its place “selected by”, and remove “veteran” each place it appears and add in its place “individual”; b. In paragraph (c), remove ”$90,000” and add in its place “$200,000”, remove “available to” and add in its place “selected by”, remove “eligible veteran” each place it appears and add in its place “eligible individual”, and remove “a veteran” and add in its place “an individual”; and c. Revise the authority citation at the end of section.

    The revision reads as follows:

    § 8a.4 Coverage. (Authority: 38 U.S.C. 501, 2101, 2101A, 2106)
    [FR Doc. 2016-25025 Filed 10-17-16; 8:45 am] BILLING CODE 8320-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2010-0682; FRL-9954-25-OAR] RIN 2060-AT18 National Emission Standards for Hazardous Air Pollutant Emissions: Petroleum Refinery Sector AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    On December 1, 2015, the Environmental Protection Agency (EPA) finalized amendments to the National Emission Standards for Hazardous Air Pollutants (NESHAP) Refinery Maximum Achievable Control Technology (MACT) 1 and Refinery MACT 2 regulations and the New Source Performance Standards (NSPS) for petroleum refineries. Subsequently, the EPA received three petitions for reconsideration of the final rules. The EPA is announcing reconsideration and request for public comment on five issues raised in the petitions for reconsideration where petitioners claim that the public was not afforded an opportunity to comment. Additionally, the EPA is proposing amendments to the final rule to clarify a compliance issue raised by stakeholders subject to the final rule and to correct a referencing error. The EPA is seeking comment only on the five identified petition issues and on the proposed compliance issue clarification and referencing error amendments. The EPA will not respond to comments addressing any other issues or any other provisions of the final rule.

    DATES:

    Comments must be received on or before December 2, 2016.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2010-0682, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA is seeking comment only on the issues specifically identified in this notice. The EPA will not respond to any comments addressing other aspects of the final rules or any other related rulemakings. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-2010-0682. The EPA's policy is that all comments received will be included in the public docket without change, and will be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be CBI or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. Send or deliver information identified as CBI only to the following address: OAQPS Document Control Officer (C404-02), Office of Air Quality Planning and Standards, U.S. EPA, Research Triangle Park, North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2010-0682. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on a disk or CD-ROM that you mail to the EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information you claim as CBI. In addition to one complete version of the comment that includes information claimed as CBI, you must submit a copy of the comment that does not contain the information claimed as CBI for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

    The http://www.regulations.gov Web site is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should not include special characters or any form of encryption and be free of any defects or viruses.

    Docket. All documents in the docket are listed in the regulations.gov index. Although listed in the index, some information is not publicly available, e.g., 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. Publicly available docket materials are available either electronically in regulations.gov or in hard copy at the EPA Docket Center, EPA WJC West Building, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the EPA Docket Center is (202) 566-1742. Visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm for additional information about the EPA's public docket.

    Public hearing. A public hearing will be held if requested by October 24, 2016 to accept oral comments on this proposed action. The hearing will be held, if requested, on November 2, 2016 at the EPA's North Carolina Campus located at 109 T.W. Alexander Drive, Research Triangle Park, NC 27711. The hearing, if requested, will begin at 9:00 a.m. (local time) and will conclude at 1:00 p.m. (local time). To request a hearing, to register to speak at a hearing, or to inquire if a hearing will be held, please contact Ms. Virginia Hunt at (919) 541-0832 or by email at [email protected] The last day to pre-register to speak at a hearing, if one is held, will be October 31, 2016. Additionally, requests to speak will be taken the day of the hearing at the hearing registration desk, although preferences on speaking times may not be able to be fulfilled. Please note that registration requests received before the hearing will be confirmed by the EPA via email.

    Please note that any updates made to any aspect of the hearing, including whether or not a hearing will be held, will be posted online at https://www.epa.gov/stationary-sources-air-pollution/petroleum-refinery-sector-risk-and-technology-review-and-new-source. We ask that you contact Ms. Virginia Hunt at (919) 541-0832 or by email at [email protected] or monitor our Web site to determine if a hearing will be held. The EPA does not intend to publish a notice in the Federal Register announcing any such updates.

    FOR FURTHER INFORMATION CONTACT:

    For questions about this proposed action, contact Ms. Brenda Shine, Sector Policies and Programs Division, Refining and Chemicals Group (E143-01), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina, 27711; telephone number: (919) 541-3608; fax number: (919) 541-0246; and email address: [email protected] For information about the applicability of the NESHAP to a particular entity, contact Ms. Maria Malave, Office of Enforcement and Compliance Assurance, U.S. Environmental Protection Agency, EPA WJC South Building, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone number: (202) 564-7027; fax number: (202) 564-0050; and email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Preamble Acronyms and Abbreviations. We use multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA defines the following terms and acronyms here:

    CAA Clean Air Act CBI confidential business information CFR Code of Federal Regulations DCU delayed coking unit EPA Environmental Protection Agency FCCU fluid catalytic cracking unit HAP hazardous air pollutants lbs/day pounds per day LEL lower explosive limit MACT Maximum Achievable Control Technology MIR maximum individual risk MPV miscellaneous process vent NESHAP National Emissions Standards for Hazardous Air Pollutants NSPS New Source Performance Standards NTTAA National Technology Transfer and Advancement Act OAQPS Office of Air Quality Planning and Standards OECA Office of Enforcement and Compliance Assurance OMB Office of Management and Budget OSHA Occupational Safety and Health Administration PRA Paperwork Reduction Act PRD Pressure Relief Devices psig pounds per square inch gauge PSM Process Safety Management PTE potential to emit RC/CA root cause analysis and corrective action RFA Regulatory Flexibility Act RMP Risk Management Plan RTR residual risk and technology review SRU sulfur recovery unit SSM startup, shutdown and malfunction STP standard temperature and pressure TTN Technology Transfer Network UMRA Unfunded Mandates Reform Act VOC volatile organic compounds °F degrees Fahrenheit

    Organization of This Document. The information in this preamble is organized as follows:

    I. General Information A. What is the source of authority for the reconsideration action? B. Does this action apply to me? C. Where can I get a copy of this document and other related information? II. Background III. Reconsideration Issues and Request for Public Comments A. Work Practice Standards for PRDs B. Work Practice Standards for Emergency Flaring C. Assessment of Risk From the Refinery Source Categories After Implementation of the PRD and Emergency Flaring Work Practice Standards D. Alternative Work Practice Standards for DCUs Employing the Water Overflow Design E. Reduced Frequency of Fenceline Monitoring IV. Proposed Technical Clarifications V. Statutory and Executive Order Reviews A. Executive Orders 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Paperwork Reduction Act (PRA) C. Regulatory Flexibility Act (RFA) D. Unfunded Mandates Reform Act (UMRA) E. Executive Order 13132: Federalism F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use I. National Technology Transfer and Advancement Act (NTTAA) J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations I. General Information A. What is the source of authority for the reconsideration action?

    The statutory authority for this action is provided by sections 112 and 307(d)(7)(B) of the Clean Air Act (CAA)(42 U.S.C. 7412 and 7607(d)(7)(B)).

    B. Does this action apply to me?

    Regulated Entities. Categories and entities potentially regulated by this action are shown in Table 1 of this preamble.

    Table 1—Industrial Source Categories Affected by This Final Action NESHAP and source category  NAICS a code Petroleum Refining Industry 324110 a North American Industry Classification System.

    Table 1 of this preamble is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by this action for the source categories listed. To determine whether your facility is affected, you should examine the applicability criteria in the appropriate NESHAP. If you have any questions regarding the applicability of any aspect of these NESHAP, please contact the appropriate person listed in the preceding FOR FURTHER INFORMATION CONTACT section of this preamble.

    C. Where can I get a copy of this document and other related information?

    In addition to being available in the docket, an electronic copy of this proposal will also be available on the Internet through the Technology Transfer Network (TTN) Web site, a forum for information and technology exchange in various areas of air pollution control. Following signature by the EPA Administrator, the EPA will post a copy of this proposed action at: https://www.epa.gov/stationary-sources-air-pollution/petroleum-refinery-sector-risk-and-technology-review-and-new-source. Following publication in the Federal Register, the EPA will post the Federal Register version and key technical documents at this Web site.

    II. Background

    On June 30, 2014, the EPA published a proposed rule in the Federal Register addressing the risk and technology review (RTR) for the Petroleum Refinery NESHAP, 40 CFR part 63, subparts CC (Refinery MACT 1) and UUU (Refinery MACT 2). On December 1, 2015 (80 FR 75178), after receiving and addressing public comments, the EPA finalized determinations pursuant to CAA section 112(d)(6) and (f)(2) for the Petroleum Refinery source categories and amended Refinery MACT 1 and 2 based on those determinations. The final December 2015 action included a determination that the remaining risk after promulgation of the revised NESHAP are acceptable and provide an ample margin of safety. The December 2015 action also finalized changes to Refinery MACT 1 and 2 pursuant to CAA section 112(d)(2) and (3), notably revising the requirements for flares and pressure relief devices (PRD). The December 2015 action also finalized technical corrections and clarifications to Refinery NSPS subparts J and Ja to address issues raised by the American Petroleum Institute (API) in their 2008 petition for reconsideration of the final NSPS Ja rule that had not been previously addressed. These include corrections and clarifications to provisions for sulfur recovery plants, performance testing, and control device operating parameters.

    Following promulgation, the EPA received three separate petitions for reconsideration: Two jointly from API and the American Fuel and Petrochemical Manufacturers (AFPM) and one from Earthjustice (submitted on behalf of Air Alliance Houston, California Communities Against Toxics, Clean Air Council, Coalition for a Safe Environment, Del Amo Action Committee, Environmental Integrity Project, Sierra Club, Texas Environmental Justice Advocacy Services and Utah Physicians for a Healthy Environment). The petitions are available for review in the rulemaking docket (see Docket ID No. EPA-HQ-OAR-2010-0682).

    On January 19, 2016, API and AFPM requested an administrative reconsideration under section 307(d)(7)(B) of the CAA of certain provisions of Refinery MACT 1 and 2, as promulgated in the December 2015 final rule. Specifically, API and AFPM requested that the EPA reconsider the maintenance vent provisions in Refinery MACT 1 for sources constructed on or before June 30, 2014; the alternate startup, shutdown, or hot standby standards for fluid catalytic cracking units (FCCU) constructed on or before June 30, 2014, in Refinery MACT 2; the alternate startup and shutdown for sulfur recovery units (SRU) constructed on or before June 30, 2014, in Refinery MACT 2; and the new catalytic reforming units (CRU) purging limitations in Refinery MACT 2. The request pertained to providing and/or clarifying the compliance time for these sources. In response to this request and additional information received relative to providing additional compliance time for these provisions, the EPA issued a proposal on February 9, 2016 (81 FR 6814). A final rule was published on July 13, 2016 (81 FR 45232, July 13, 2016), fully responding to the January 19, 2016, initial petition for reconsideration submitted by API and AFPM.

    On February 1, 2016, Earthjustice filed a petition for reconsideration of several aspects of the December 1, 2015, final rule, and on that same day API and AFPM submitted a supplemental petition for reconsideration, identifying additional issues on which they sought reconsideration. In these petitions, both Earthjustice and API/AFPM requested that the EPA reconsider certain aspects of the December 2015 revisions to Refinery MACT 1 and 2, noting that CAA section 307(d)(7)(B) authorizes the EPA to reconsider a rule where it is impracticable to raise an objection during the period for public comment (but within the time specified for judicial review) or if the grounds for such an objection arose after the close of the public comment period. In particular, Earthjustice claimed that several aspects of the revisions to Refinery MACT 1 were not proposed, and, thus they were precluded from commenting on them during the public comment period: (1) Work practice standards for PRDs and flares; (2) alternative water overflow provisions for delayed coking units (DCU); (3) reduced monitoring provisions for fenceline monitoring; and (4) adjustments to the risk assessment to account for these new work practice standards. The API/AFPM petition outlined a number of specific issues related to the work practice standards for PRDs and flares, and the alternative water overflow provisions for DCUs, as well as a number of other specific issues on other aspects of the rule. On June 16, 2016, the EPA granted the petitions for reconsideration from Earthjustice and API/AFPM on the petitioners' claims as they relate to the following aspects of the December 2015 revisions to the final rule to provide an opportunity for public notice and comment: (1) The work practice standards for PRDs; (2) the work practice standards for emergency flaring events; (3) the assessment of risk as modified based on implementation of these PRD and emergency flaring work practice standards; (4) the alternative work practice standards for DCUs employing the water overflow design; and (5) the provision allowing refineries to reduce the frequency of fenceline monitoring at sampling stations that consistently record benzene concentrations below 0.9 micrograms per cubic meter.

    III. Reconsideration Issues and Request for Public Comment

    After reviewing the two February 1, 2016, petitions for reconsideration as described above, we granted reconsideration to provide the public an opportunity to comment on selected provisions of the December 2015 amendments and the assessment of risk as modified to account for the implementation of the PRD and emergency flaring work practice standards included in the December 2015 final rule. To ensure public participation in its final decisions, the Agency is requesting public comment on these issues as described below. The EPA is seeking comment only on these five specific issues. The EPA will not respond to any comments addressing any other provisions of the December 1, 2015, final Refinery Sector Rule or any other rule or issues.

    A. Work Practice Standard for PRDs

    In the proposed rule (79 FR 36970, June 30, 2014), EPA proposed to revise Refinery MACT 1 to establish operating and pressure release requirements that apply to all PRDs and to prohibit atmospheric releases of hazardous air pollutants (HAP) from PRDs. To ensure compliance, we proposed to require that sources monitor PRDs using a system that is capable of recording the time and duration of each pressure release and notifying operators that a pressure release has occurred. Many commenters suggested that a prohibition on atmospheric PRD releases was not indicative of the best performing facilities, was unachievable and/or very costly, and would have negative environmental impacts due to additional flares that would need to be installed and operated in standby mode to accept the PRD releases. Some commenters suggested that we should instead consider the rules on PRDs that apply to refineries in the South Coast Air Quality Management District (SCAQMD) and the Bay Area Air Quality Management District (BAAQMD).

    Based on these comments, we evaluated the two California district rules and determined that 8 percent (or 12 refineries) are subject to these requirements, which was a sufficient number of subject refineries to establish work practice standards that represent the emissions limitation achieved in practice by the best performers. The two rules are similar in that they both establish comprehensive regulatory programs to address the group or system of PRDs at refineries by requiring monitoring, root cause analysis, and corrective action, and by focusing on PRDs with the greatest emissions potential through a combination of applicability thresholds (albeit with differing thresholds between the two rules). In addition, both rules exclude emissions from certain types of PRDs—typically lower-release potential PRDs, liquid-type PRDs, or in the case of SCAAMD PRDs resulting from events outside of the refinery's control. We considered the two rules as the basis for determining the best performers for establishing the work practice standard that is included in the December 2015 final Refinery Sector Rule (see 40 CFR 63.648(j)(3)). In doing so, similar to these two rules, we established a work practice standard that is a comprehensive set of requirements that apply to the group of PRDs at refineries, and that focuses on reducing the size and frequency of atmospheric releases of HAP from PRDs, with an emphasis on prevention, monitoring, correction, and limitations on the frequency of release events. For further details on our analysis of the SCAQMD and BAAQMD rules and our use of those rules to establish a comprehensive work practice standard for PRDs that are representative of the best performing refineries, refer to the December 1, 2015, notice at 80 FR 75216 and the memorandum in the docket titled, “Pressure Relief Device Control Option Impacts for Final Refinery Sector Rule, July 30, 2015 (Docket ID No. EPA-HQ-OAR-2010-0682-0750).

    In the final rule, we established a four-part work practice standard in place of the prohibition on release to the atmosphere based on what was achieved by the best performers, as represented by the two California rules. Consistent with the proposed rule, the first component of the work practice standard requires that owners or operators monitor PRDs using a system that is capable of recording the time and duration of each pressure release and notifying operators that a pressure release has occurred. Second, the work practice standard requires refinery owners or operators to establish preventative measures for each affected PRD to prevent direct release of HAP to the atmosphere as a result of pressure release events. Third, in the event of an atmospheric release, the work practice standard requires refinery owners or operators to conduct a root cause analysis to determine the cause of a PRD release event. If the root cause was due to operator error or negligence, then the release would be a violation of the work practice standard. A second release due to the same root cause for the same equipment in a 3-year period would be a violation of the work practice standard. A third release in a 3-year period would be a violation of the work practice standard, regardless of the root cause. Force majeure events, as defined in the final rule, would not count in determining whether there has been a second or third event. The fourth component of the work practice standard is a requirement for corrective action. For any event other than a force majeure event, the owner or operator would be required to conduct a corrective action analysis and implement the results of the corrective action analysis. Refiners have 45 days to complete the root cause analysis and implement corrective action after the release event. The results of the root cause analysis and corrective action are due with the periodic reports on a semi-annual basis.

    We excluded the following PRDs that have very low potential to emit (PTE) based on their type of service, size and pressure from the work practice standard: PRDs that only release material that is liquid at standard temperature and pressure (STP) and that are hard-piped to a controlled drain system, PRDs that do not have a PTE of 72 pounds per day (lbs/day) or more of volatile organic compounds (VOC), PRDs with design release pressure of less than 2.5 pounds per square inch gauge (psig), PRDs on mobile equipment, PRDs in heavy liquid service, and PRDs that are designed solely to release due to liquid thermal expansion. Although these PRDs are excluded from the work practice standard, they are subject to the operating and pressure relief requirements in 40 CFR 63.648(j)(1) and (2), which apply to all PRDs.

    We request public comments on the work practice standard for PRDs as provided in 40 CFR 63.648(j)(3) and (5) through (7), including the number and type of release/event allowances; the type of PRDs covered by the work practice standard; and the definition of “force majeure event” in 40 CFR 63.641. We also request public comments on the recordkeeping and reporting requirements associated with the work practice standard in 40 CFR 63.655(g)(10)(iii) and (i)(11).

    B. Work Practice Standard for Emergency Flaring

    In the June 2014 proposed rule, the EPA proposed to amend the operating and monitoring requirements for petroleum refinery flares. As discussed in the proposal at 79 FR 36904, we determined that the requirements for flares in the General Provisions at 40 CFR 63.18 were not adequate to ensure compliance with the Refinery MACT standards. In general, flares used as air pollution control devices are expected to achieve a 98-percent HAP destruction efficiency. However, because flows of waste gases to the flares had diminished based on reductions achieved by the increased use of flare gas recovery systems, there were times when the waste gas to the flare contained insufficient heat content to adequately combust and, thus, a 98-percent HAP destruction efficiency was not being achieved. In addition, the practice of applying assist media to the flare (particularly steam to prevent smoking of the flare tip) had led to a decrease in the combustion efficiency of flares.

    To ensure that a 98-percent HAP destruction efficiency was being met, as contemplated at the time the MACT standard was promulgated, we proposed revisions to Refinery MACT 1 that required flares to operate with a continuously-lit pilot flame at all times when gases are sent to the flare, with no visible emissions except for periods not to exceed 5 minutes during any 2 consecutive hours, and to meet flare tip velocity limits and combustion zone operating limits at all times when gases are flared.

    During the comment period on the proposed rule, we received comments that the concern over insufficient heat content of the waste gas or over-assisting are less problematic in attaining a high level of destruction efficiency at the flare in emergency situations, where the flow in the flare exceeds the smokeless capacity of the flare. Thus, commenters suggested that better combustion was assured closer to the incipient smoke point of the flare and that flow velocity limits and limits on visible emissions should not apply during flaring events.

    In the final rule, we determined that it was appropriate to set different standards for when a flare is operating below its smokeless capacity and when it is operating above its smokeless capacity. We finalized the proposed requirements (with minor revisions) to apply when a flare is operating below its smokeless capacity.

    We established a separate work practice standard that applies when a flare exceeds its smokeless capacity. As with flares operating below the smokeless capacity, the work practice standard requires the refinery to have a continuously-lit pilot flame and meet combustion zone operating limits (e.g., heat content in the combustion zone) at all times and meet the monitoring, recordkeeping, and reporting requirements. These requirements are the most critical in ensuring that a 98-percent destruction efficiency is being met. The work practice standard also requires owners or operators to develop flare management plans to identify the flare system smokeless capacity and flare components, waste gas streams that are flared, monitoring systems and their locations, procedures that will be followed to limit discharges to the flare that cause the flare to exceed its smokeless capacity, and prevention measures implemented for PRDs that discharge to the flare header. The work practice standard requires refinery owners or operators to conduct a specific root cause analysis and take corrective action for any flaring event that exceeds the flare's smokeless capacity and that also exceeds the flare tip velocity and/or visible emissions limit. Refiners have 45 days to complete the root cause analysis and implement corrective action after an event. The results of the root cause and corrective action are due with the periodic reports on a semi-annual basis.

    If the root cause analysis indicates that the exceedance of the flare tip velocity and/or the visible emissions limit is caused by operator error or poor maintenance, the exceedance is a violation of the work practice standard. A second event causing an exceedance of either the flare tip velocity or the visible emissions limit within a rolling 3-year period from the same root cause on the same equipment is a violation of the standard. A third exceedance of the velocity or visible emissions limit occurring from the same flare in a rolling 3-year period is a violation of the work practice standard, regardless of the cause. However, force majeure events are excluded from the event count. The requirements for a continuously-lit pilot flame, combustion-zone operating limits and the monitoring, recordkeeping and reporting requirements apply at all times (whether the flare is operating below, at, or above its smokeless capacity), including during a force majeure event.

    In reviewing the regulatory text for this proposed action, we determined that 40 CFR 63.670(o)(1)(ii)(B) contains an incorrect reference to pressure relief devices for which preventative measures must be implemented. The correct reference is paragraph 40 CFR 63.648(j)(3)(ii) not 40 CFR 63.648(j)(5). We are proposing to correct this referencing error.

    We request public comments on the above smokeless capacity work practice standard in 40 CFR 63.670(o), including the requirements to maintain records of prevention measures in 40 CFR 63.670(o)(1)(ii)(B) and (o)(1)(vi); the requirement to establish a single smokeless design capacity in 40 CFR 63.670(o)(1)(iii)(B); the number and type of releases/events that constitute a violation; the phrase “. . . and the flare vent gas flow rate is less than the smokeless design capacity of the flare” in 40 CFR 63.670(c) and (d)”; the proposed correction to paragraph 40 CFR 63.670(o)(1)(ii)(B); and other provisions in 40 CFR 63.670(o)(3) through (7). We also request public comments on the recordkeeping and reporting requirements associated with these work practice standards in 40 CFR 63.655(g)(11)(iv) and (i)(9)(x) through (xii).

    C. Assessment of Risk From the Refinery Source Categories After Implementation of the PRD and Emergency Flaring Work Practice Standards

    The results of our residual risk review for the Petroleum Refinery source categories were published in the June 30, 2014, proposal (79 FR 36934 through 36942), and included assessment of chronic and acute inhalation risk, as well as multipathway and environmental risk, to inform our decisions regarding acceptability and ample margin of safety. The results indicated that the cancer risk to the individual most exposed (maximum individual risk or “MIR”) based on allowable HAP emissions is no greater than approximately 100-in-1 million, which is the presumptive limit of acceptability, and that the MIR based on actual HAP emissions is no greater than approximately 60-in-1 million but may be closer to 40-in-1 million. In addition, the maximum chronic non-cancer target organ-specific hazard index (TOSHI) due to inhalation exposures was less than 1. The evaluation of acute non-cancer risks, which was conservative, showed acute risks below a level of concern. Based on the results of a refined site-specific multipathway analysis portion of the risk review, we also concluded that the cancer risk to the individual most exposed through ingestion is considerably less than 100-in-1 million.

    In the final Refinery MACT 1 rule, we established work practice standards for PRD releases and emergency flaring events, which under the proposed rule would not have been allowed. Thus, because we did not consider such non-routine emissions under our risk assessment for the proposed rule, we performed a screening assessment of risk associated with these emissions for the final rule as discussed in detail in “Final Residual Risk Assessment for the Petroleum Refining Source Sector” in Docket ID No. EPA-HQ-OAR-2010-0682. Our analysis showed that these HAP emissions could increase the MIR based on actual emissions by as much as 2-in-1 million, which results in essentially the same level of risk as was estimated at proposal. We also estimated that chronic non-cancer TOSHIs attributable to the additional exposures from non-routine flaring and PRD HAP emissions are well below 1. When adding the additional chronic noncancer TOSHI risks from the screening analysis with the analysis in the proposal, chronic noncancer TOSHI risks still remain below 1. Further, our screening analysis also projected that maximum acute exposure to non-routine PRD and flare emissions would result in a maximum hazard quotient (HQ) of 14 from benzene emissions based on a reference exposure level (REL). Based on risk analysis performed for the proposed rule and the screening assessment to consider how conclusions from that analysis would be affected by the additional non-routine flare and PRD emissions allowed under the final rule, we determined that the risk posed after implementation of the revisions to the MACT standards is acceptable.

    We request public comments on the screening analysis and the conclusions reached based on that analysis in conjunction with the risk analysis performed for the proposed rule.

    D. Alternative Work Practice Standards for DCUs Employing the Water Overflow Design

    In Refinery MACT 1, we finalized MACT standards for DCU decoking operations. Existing DCU-affected sources must comply with a 2 psig or 220 degrees Fahrenheit (°F) limit in the drum overhead line determined on a rolling 60-event basis prior to venting to the atmosphere, draining, or deheading the coke drum. New DCU affected sources must comply with a 2.0 psig or 218 °F limit in the drum overhead line on a per-event, not-to-exceed basis. In the final rule, we also finalized an alternative requirement to address DCU with water overflow design that we did not propose, where pressure monitoring would not be appropriate. As part of these provisions, we also included a new requirement in the final rule for DCU with water overflow design to hard-pipe the overflow drain water to the receiving tank via a submerged fill pipe (pipe below the existing liquid level) whenever the overflow water exceeds 220 °F.

    We request public comments on the alternative work practice standard for delayed coking units employing a water overflow design provided in 40 CFR 63.657(e).

    E. Reduced Frequency of Fenceline Monitoring

    In the December 2015 final rule, we revised Refinery MACT 1 to establish a work practice standard requiring refinery owners to monitor benzene concentrations around the fenceline or perimeter of the refinery. We promulgated new EPA Methods 325A and B which specify monitor siting and quantitative sample analysis procedures. The work practice is designed to improve the management of fugitive emissions at petroleum refineries through the use of passive monitors by requiring sources to implement corrective measures if the benzene concentration in air attributable to emissions from the refinery exceeds a fenceline benzene concentration action level. The work practice requires refinery owners to reduce fenceline levels that exceed the concentration action level to at or below that level. In the final rule, we included provisions that were not proposed that would allow for reduced monitoring frequency (after 2 years of continual monitoring) at monitoring locations with consistently low fenceline concentrations.

    We request public comments on the provision allowing refineries to reduce the frequency of fenceline monitoring at monitoring sites that consistently record benzene concentrations below 0.9 micrograms per cubic meter, as provided in 40 CFR 63.658(e)(3).

    IV. Proposed Technical Clarifications

    In this action, the EPA is proposing to amend provisions related to how to address overlapping requirements for equipment leaks that are contained in Refinery MACT 1 and in the Refinery Equipment Leak NSPS (40 CFR part 60, subpart GGGa). The Refinery MACT 1 provision at 40 CFR 63.640(p)(2) currently states that equipment leaks that are subject to the provisions in the Refinery Equipment Leak NSPS (40 CFR part 60 subpart GGGa) are only required to comply with the provisions in the Refinery Equipment Leak NSPS. However, the Refinery Equipment Leak NSPS does not include the new work practice standards finalized in the final Refinery MACT 1 at 40 CFR 63.648(j) which apply to releases from PRD. Certain provisions of 40 CFR 63.648(j) detail a work practice standard for the management of releases from PRD. We intended that these new work practice standards would be applicable to all PRD at refineries, including those PRD subject to the requirements in the Refinery Equipment Leaks NSPS. In order to provide clarity and assure that stakeholders subject to these provisions fully understand their compliance obligations, we are proposing that equipment components that are also subject to the provisions of the Refinery Equipment Leak NSPS, are required to comply with the provisions specified in the Refinery Equipment Leaks NSPS, except for PRDs in organic HAP service, which must only comply with the requirements in Refinery MACT 1 at 40 CFR 63.648(j) for PRDs. We are also amending the introductory text in 40 CFR 63.648(j) to reference Refinery Equipment Leaks NSPS at 40 CFR 60.482-4a and amending paragraphs (j)(2)(i) through (iii) of Refinery MACT 1 to correct the existing reference to 40 CFR 60.485(b), which should refer to 40 CFR 60.485(c) and 40 CFR 60.485a(c).

    V. Statutory and Executive Order Reviews

    Additional information about these statues and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.

    B. Paperwork Reduction Act (PRA)

    This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations at 40 CFR part 63, subpart CC and has assigned OMB control number 2060-0340. The proposed amendments are the result of a clarification that does not affect the estimated burden of the existing rule. Specifically, we are proposing amendments clarifying that facilities using the equipment leak overlap provisions must also comply with the PRD work practice standard in 40 CFR part 63, subpart CC. In our burden estimates for the December 1, 2015, final rule, we assumed that all major source refineries would have to comply with the PRD work practice standards. Consequently, the burden estimates provided with the December 1, 2015, final rule are consistent with the proposed clarifying amendment. Therefore, we have not revised the information collection request for the existing rule.

    C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden, or otherwise has a positive economic effect on the small entities subject to the rule. The proposed rule consists of a clarification which does not change the expected economic impact analysis performed for the existing rule. We have, therefore, concluded that this action will have no net regulatory burden for all directly regulated small entities.

    D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector.

    E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

    F. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications as specified in Executive Order 13175. It will not have substantial direct effect on tribal governments, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action.

    G. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action requests comment on a risk assessment that is described in section III. C. of this preamble.

    H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 because it is not a significant energy action under Executive Order 12866.

    I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

    J. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The proposed amendments serve to clarify one aspect of the rule. They do not relax the control measures on regulated sources, and, therefore, do not change the level of environmental protection.

    List of Subjects in 40 CFR Part 63

    Environmental protection, Administrative practice and procedures, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.

    Dated: October 6, 2016. Gina McCarthy, Administrator.

    For the reasons stated in the preamble, title 40, chapter I, of the Code of Federal Regulations is proposed to be amended as follows:

    PART 63—NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS FOR SOURCE CATEGORIES 1. The authority citation for part 63 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart CC—National Emission Standards for Hazardous Air Pollutants From Petroleum Refineries 2. Section 63.640 is amended by revising paragraph (p)(2) to read as follows:
    § 63.640 Applicability and designation of affected source.

    (p) * * *

    (2) Equipment leaks that are also subject to the provisions of 40 CFR part 60, subpart GGGa, are required to comply only with the provisions specified in 40 CFR part 60, subpart GGGa, except that pressure relief devices in organic HAP service must only comply with the requirements in § 63.648(j).

    3. Section 63.648 is amended by revising paragraphs (j) introductory text and (j)(2)(i) through (iii) to read as follows:
    § 63.648 Equipment leak standards.

    (j) Except as specified in paragraph (j)(4) of this section, the owner or operator must comply with the requirements specified in paragraphs (j)(1) and (2) of this section for pressure relief devices, such as relief valves or rupture disks, in organic HAP gas or vapor service instead of the pressure relief device requirements of § 60.482-4 of this chapter, § 60.482-4a of this chapter, or § 63.165, as applicable. Except as specified in paragraphs (j)(4) and (5) of this section, the owner or operator must also comply with the requirements specified in paragraph (j)(3) of this section for all pressure relief devices.

    (2) * * *

    (i) If the pressure relief device does not consist of or include a rupture disk, conduct instrument monitoring, as specified in § 60.485(c) of this chapter, § 60.485a(c) of this chapter, or § 63.180(c), as applicable, no later than 5 calendar days after the pressure relief device returns to organic HAP gas or vapor service following a pressure release to verify that the pressure relief device is operating with an instrument reading of less than 500 ppm.

    (ii) If the pressure relief device includes a rupture disk, either comply with the requirements in paragraph (j)(2)(i) of this section (not replacing the rupture disk) or install a replacement disk as soon as practicable after a pressure release, but no later than 5 calendar days after the pressure release. The owner or operator must conduct instrument monitoring, as specified in § 60.485(c) of this chapter, § 60.485a(c) of this chapter, or § 63.180(c), as applicable, no later than 5 calendar days after the pressure relief device returns to organic HAP gas or vapor service following a pressure release to verify that the pressure relief device is operating with an instrument reading of less than 500 ppm.

    (iii) If the pressure relief device consists only of a rupture disk, install a replacement disk as soon as practicable after a pressure release, but no later than 5 calendar days after the pressure release. The owner or operator may not initiate startup of the equipment served by the rupture disk until the rupture disc is replaced. The owner or operator must conduct instrument monitoring, as specified in § 60.485(c) of this chapter, § 60.485a(c) of this chapter, or § 63.180(c), as applicable, no later than 5 calendar days after the pressure relief device returns to organic HAP gas or vapor service following a pressure release to verify that the pressure relief device is operating with an instrument reading of less than 500 ppm.

    4. Section 63.670 is amended by revising paragraph (o)(1)(ii)(B) to read as follows:
    § 63.670 Requirements for flare control devices.

    (o) * * *

    (1) * * *

    (ii) * * *

    (B) Implementation of prevention measures listed for pressure relief devices in § 63.648(j)(3)(ii) for each pressure relief valve that can discharge to the flare.

    [FR Doc. 2016-25162 Filed 10-17-16; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2015-0032; FRL-9952-19] Receipt of Several Pesticide Petitions Filed for Residues of Pesticide Chemicals in or on Various Commodities AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of filing of petitions and request for comment.

    SUMMARY:

    This document announces the Agency's receipt of several initial filings of pesticide petitions requesting the establishment or modification of regulations for residues of pesticide chemicals in or on various commodities.

    DATES:

    Comments must be received on or before November 17, 2016.

    ADDRESSES:

    Submit your comments, identified by docket identification (ID) number and the pesticide petition number (PP) of interest as shown in the body of this document, by one of the following methods:

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

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

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

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

    FOR FURTHER INFORMATION CONTACT:

    Michael L. Goodis, Registration Division (RD) (7505P), main telephone number: (703) 305-7090; email address: [email protected] The mailing address for each contact person is: Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460-0001. As part of the mailing address, include the contact person's name, division, and mail code. The division to contact is listed at the end of each pesticide petition summary.

    SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me?

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

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT for the division listed at the end of the pesticide petition summary of interest.

    B. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

    2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

    3. Environmental justice. EPA seeks to achieve environmental justice, the fair treatment and meaningful involvement of any group, including minority and/or low-income populations, in the development, implementation, and enforcement of environmental laws, regulations, and policies. To help address potential environmental justice issues, the Agency seeks information on any groups or segments of the population who, as a result of their location, cultural practices, or other factors, may have atypical or disproportionately high and adverse human health impacts or environmental effects from exposure to the pesticides discussed in this document, compared to the general population.

    II. What action is the agency taking?

    EPA is announcing its receipt of several pesticide petitions filed under section 408 of the Federal Food, Drug, and Cosmetic Act (FFDCA), 21 U.S.C. 346a, requesting the establishment or modification of regulations in 40 CFR part 180 for residues of pesticide chemicals in or on various food commodities. The Agency is taking public comment on the requests before responding to the petitioners. EPA is not proposing any particular action at this time. EPA has determined that the pesticide petitions described in this document contain the data or information prescribed in FFDCA section 408(d)(2), 21 U.S.C. 346a(d)(2); however, EPA has not fully evaluated the sufficiency of the submitted data at this time or whether the data support granting of the pesticide petitions. After considering the public comments, EPA intends to evaluate whether and what action may be warranted. Additional data may be needed before EPA can make a final determination on these pesticide petitions.

    Pursuant to 40 CFR 180.7(f), a summary of each of the petitions that are the subject of this document, prepared by the petitioner, is included in a docket EPA has created for each rulemaking. The docket for each of the petitions is available at http://www.regulations.gov.

    As specified in FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), EPA is publishing notice of the petition so that the public has an opportunity to comment on this request for the establishment or modification of regulations for residues of pesticides in or on food commodities. Further information on the petition may be obtained through the petition summary referenced in this unit.

    New Tolerances

    1. PP 5E8431. (EPA-HQ-OPP-2016-0087). Bayer CropScience LP, 2 T.W. Alexander Dr., Research Triangle Park, NC, requests to establish a tolerance in 40 CFR part 180.435 for residues of the insecticide, deltamethrin, in or on orange, fruit at 0.3 ppm, orange, dried pulp at 3 ppm, and orange, oil at 50 ppm. The gas chromatography equipped with an electron capture detector (GC/ECD) is used to measure and evaluate the chemical cis-deltamethrin, alpha-R-deltamethrin and trans-deltamethrin. Contact: RD.

    2. PP 6E8482. (EPA-HQ-OPP-2016-0352). Interregional Research No 4 (IR-4) Project, Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W., Princeton, NJ 08540, requests to establish a tolerance in 40 CFR part 180.442 for residues of the insecticide, Bifenthrin (2-methyl [1,1′-biphenyl]-3-yl) methyl-3-(2-chloro-3,3,3,-trifluoro-1-propenyl)-2,2-dimethylcyclopropanecarboxylate in or on apple, wet pomace at 1.3 ppm; avocado at 0.50 ppm; berry, low growing, subgroup 13-07G at 3.0 ppm; brassica, leafy greens, subgroup 4-16B at 15 ppm; caneberry subgroup 13-07A at 1.0 ppm; fruit, citrus, group 10-10 at 0.05 ppm; fruit, pome, group 11-10, except mayhaw, at 0.70 ppm; fruit, small, vine climbing, except fuzzy kiwifruit, subgroup 13-07F at 0.20 ppm; nut, tree, group 14-12 at 0.05 ppm; peach, subgroup 12-12B at 0.70 ppm; pepper/eggplant subgroup 8-10B at 0.50 ppm; pomegranate at 0.50 ppm; and tomato, subgroup 8-10A at 0.30 ppm. The GC/ECD is used to measure and evaluate the chemical bifenthrin. Contact: RD.

    3. PP 6E8483. (EPA-HQ-OPP-2016-0448). IR-4, Rutgers, The State University of New Jersey, 500 College Road East, Suite 201-W, Princeton, NJ 08540, requests to establish tolerances in 40 CFR part 180.686 for residues of the fungicide, benzovindiflupyr (N-[9-(dichloromethylene)-1,2,3,4-tetrahydro-1,4-methanonaphthalen-5-yl]-3-(difluoromethyl)-1-methyl-1H-pyrazole-4-carboxamide) in or on onion, bulb, subgroup 3-07A at 0.02 ppm and onion, green, subgroup 3-07B at 0.4 ppm. The multi-residue analytical method consisting of high pressure liquid chromatography with tandem mass spectrometry (LC/MS/MS) is used to measure and evaluate the chemical benzovindiflupyr. Contact: RD.

    4. PP 6E8484. (EPA-HQ-OPP-2016-0475). IR-4, Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W., Princeton, NJ 08540, requests to establish tolerances in 40 CFR part 180.475 for residues of the fungicide difenoconazole, 1-[2-[2-chloro-4-(4-chlorophenoxy)phenyl]-4-methyl-1,3-dioxolan-2-ylmethyl]-1H-1,2,4,—triazole, including its metabolites and degradates, in or on brassica, leafy greens, subgroup 4-16B at 35 ppm; cranberry at 0.6 ppm; fruit, small, vine climbing, except fuzzy kiwifruit, subgroup 13-07F at 4.0 ppm; guava at 3.0 ppm; kohlrabi at 2.0 ppm; papaya at 0.6 ppm; and vegetable, brassica, head and stem, group 5-16 at 2.0 ppm. Available analytical methods for crops include gas chromatography (GC) equipped with a nitrogen-phosphorous detector; and LC/MS/MS; and for meat, milk, poultry or eggs, Syngenta's method, AG544A, is used to measure and evaluate the chemical difenoconazole. Contact: RD.

    Amended Tolerances

    1. PP 6E8482. (EPA-HQ-OPP-2016-0352). IR-4 Project, Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W, Princeton, NJ 08540, proposes upon establishment of tolerances referenced above under “New Tolerances” to remove existing tolerances in 40 CFR 180.442 for residues of the insecticide, Bifenthrin (2-methyl [1,1′-biphenyl]-3-yl) methyl-3-(2-chloro-3,3,3,-trifluoro-1-propenyl)-2,2-dimethylcyclopropanecarboxylate in or on apple at 0.5 parts per million (ppm) brassica, leafy greens, subgroup 5B at 3.5 ppm; caneberry, subgroup 13A at 1.0 ppm; eggplant 0.05 ppm; fruit, citrus, group 10 at 0.05 ppm; grape at 0.20 ppm; groundcherry 0.5 ppm; nectarine at 0.5 ppm; nut, tree, group 14 at 0.05 ppm; okra at 0.50 ppm; peach at 0.5 ppm; pear at 0.5 ppm; pepino 0.5 ppm; pepper, bell at 0.5 ppm; pepper, nonbell at 0.5 ppm; pistachio at 0.05 ppm; strawberry at 3.0 ppm; tomato at 0.15 ppm; and turnip, greens at 3.5 ppm. The GC/ECD is used to measure and evaluate the chemical bifenthrin. Contact: RD.

    2. PP 6E8484. (EPA-HQ-OPP-2016-0475). IR-4, Rutgers, The State University of New Jersey, 500 College Road East, Suite 201 W., Princeton, NJ 08540, requests that upon establishing tolerances for this petition under “New Tolerances” above, 40 CFR part 180.475 is amended to remove existing tolerances for residues of the fungicide difenoconazole, 1-[2-[2-chloro-4-(4-chlorophenoxy)phenyl]-4-methyl-1,3-dioxolan-2-ylmethyl]-1H-1,2,4,—triazole, including its metabolites and degradates, in or on brassica, head and stem, subgroup 5A at 1.9 ppm, brassica, leafy greens, subgroup 5B at 35 ppm; grape at 4.0 ppm; and turnip, greens at 35 ppm. Contact: RD

    Tolerance Exemptions

    1. PP IN-10922. (EPA-HQ-OPP-2016-0487). Itaconix, 2 Marin Way, Stratham, NH 03885, requests to establish an exemption from the requirement of a tolerance for residues of butanedioic acid, 2-methylene-, telomer with sodium phosphinate (1:1), acidified, potassium salt, 4000 amu, (CAS Reg. No. 1663489-14-2) with a number-average molecular weight (in amu) of 3811 grams/mole when used as an inert ingredient in pesticide formulations under 40 CFR 180.960. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD.

    2. PP IN-10905. (EPA-HQ-OPP-2016-0472). Technology Sciences Group (1150 18th St., NW., Suite 1000, Washington, DC 20036) on behalf of Central Garden & Pet (1501 East Woodfield Road, Suite 200 West, Schaumburg, IL 60173) requests to establish an exemption from the requirement of a tolerance for residues of ethoxyquin (CAS Reg No. 91-53-2) when used as an inert ingredient (antioxidant and stabilizing agent) in pesticide formulations applied to animals under 40 CFR 180.930 at a concentration not to exceed 0.015% by weight (150 ppm) in finished feed-through pesticide formulations. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD

    Tolerance Exemption Amended

    1. PP IN-10965. (EPA-HQ-OPP-2016-0500). Monsanto Company, 1300 I Street NW., Suite 450 East, Washington, DC 20005, requests to amend the exemption from the requirement of a tolerance in 40 CFR 180.910 for residues of mono-, di-, and trimethylnapthalenesulfonic acids and napthalenesulfonic acids formaldehyde condensates, ammonium and potassium salts (CAS Reg. Nos. 9008-63-3, 9069-80-1, 9084-06-4, 36290-04-7, 91078-68-1, 141959-43-5, 68425-94-5) to include the corresponding potassium salt (CAS Reg. No. 67828-14-2) when used as an inert ingredient (surfactant, related adjuvant of surfactant in pesticide formulations applied to growing crops and raw agricultural commodities after harvest. The petitioner believes no analytical method is needed because it is not required for an exemption from the requirement of a tolerance. Contact: RD.

    Authority:

    21 U.S.C. 346a.

    Dated: September 30, 2016. Michael Goodis, Acting Director, Registration Division, Office of Pesticide Programs.
    [FR Doc. 2016-25146 Filed 10-17-16; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R6-ES-2016-0106; 4500030114] RIN 1018-BB78 Endangered and Threatened Wildlife and Plants; Proposed Rule for the North American Wolverine AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule; reopening of comment period.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), notify the public that we are reopening the comment period on our February 4, 2013, proposed rule to list the distinct population segment of wolverine (Gulo gulo luscus) occurring in the contiguous United States as threatened, under the Endangered Species Act of 1973, as amended (Act). The District Court for the District of Montana vacated our August 13, 2014, withdrawal of our proposed rule to list the distinct population segment of the North American wolverine as threatened under the Act, which effectively returns the process to the stage of the proposed listing rule we published in 2013. We will initiate a new status review of the North American wolverine, to determine whether this distinct population segment meets the definition of an endangered or threatened species under the Act. We request new information regarding the North American wolverine to inform this status review. We may also reopen the comment period should we receive significant new information as a result of this document.

    DATES:

    In order to fully consider and incorporate public comment, the Service requests submittal of comments by close of business November 17, 2016. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date.

    ADDRESSES:

    Document availability: You may obtain copies of the proposed rule and supporting documents on the internet at https://www.fws.gov/mountain-prairie/es/wolverine.php or at http://www.regulations.gov at Docket No. FWS-R6-ES-2012-0107 or by mail from the Montana Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT). Please note that the docket number for background information on this species is different from the docket number for the submission of comments, which is provided in the headings of this document and also in the following paragraphs:

    Written Comments: You may submit written comments by one of the following methods:

    (1) Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. Submit comments on the proposed listing rule by searching for Docket No. FWS-R6-ES-2016-0106, which is the docket number for this document and any further documents that may be published related to this rulemaking action.

    (2) By hard copy: Submit comments on the proposed listing rule by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R6-ES-2016-0106; U.S. Fish and Wildlife Service Headquarters, MS: BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803.

    We request that you send comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see the Public Comments section below for more information).

    FOR FURTHER INFORMATION CONTACT:

    Jodi Bush, Field Supervisor, U.S. Fish and Wildlife Service, Montana Ecological Services Office, 585 Shepard Way, Helena, MT 59601, by telephone (406) 449-5225). Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Background Species Information

    Please refer to the February 4, 2013, proposed listing rule at 78 FR 7864 for information about the wolverine's taxonomy; life history; requirements for habitat, space, and food; densities; status in Canada and Alaska; geographic range delineation complexities; distribution; and habitat relationships and distribution. Please also refer to our December 14, 2010, 12-month petition finding (75 FR 78030) and our February 4, 2013, proposed rule to list the North American wolverine (78 FR 7864) for a detailed evaluation of the wolverine under our distinct population segment (DPS) policy, which published in the Federal Register on February 7, 1996 (61 FR 4722).

    Previous Federal Actions

    Please refer to the proposed listing rule for the wolverine (78 FR 7864; February 4, 2013) for a detailed description of previous Federal actions concerning the wolverine prior to 2013. On February 4, 2013, we published a proposed rule to list the DPS of wolverine occurring in the contiguous United States as threatened, under the Act, with a proposed rule under section 4(d) of the Act that outlines the prohibitions necessary and advisable for the conservation of the wolverine (78 FR 7864). We also published a February 4, 2013, proposed rule to establish a nonessential experimental population (NEP) area for the North American wolverine in the Southern Rocky Mountains of Colorado, northern New Mexico, and southern Wyoming (78 FR 7890). On October 31, 2013, we reopened the comment period on the proposed listing rule for an additional 30 days (78 FR 65248).

    Following publication of the 2013 proposed rules, there was scientific disagreement and debate about the interpretation of the habitat requirements for wolverines and the available climate change information used to determine the extent of threats to the DPS. Based on this substantial disagreement regarding the sufficiency or accuracy of the available data relevant to the proposed listing, on February 5, 2014 (79 FR 6874), we announced a 6-month extension of the final determination of whether to list the wolverine DPS as a threatened species. We also reopened the comment period on the proposed rule to list the contiguous U.S. DPS of the North American wolverine for 90 days.

    On August 13, 2014, we withdrew the proposed rule to list the DPS of the North American wolverine as a threatened species under the Act (79 FR 47522). This withdrawal was based on our conclusion that the factors affecting the DPS as identified in the proposed rule were not as significant as believed at the time of the proposed rule's publication in 2013. As a result, we also withdrew our associated proposed rule under section 4(d) of the Act contained in the proposed listing rule and withdrew the proposed NEP designation under section 10(j) of the Act for the southern Rocky Mountains.

    In October 2014, three complaints were filed in the District Court for the District of Montana by Defenders of Wildlife, WildEarth Guardians, Center for Biological Diversity, and other organizations challenging the withdrawal of the proposal to list the North American wolverine DPS. Numerous parties intervened in the litigation. These three cases were consolidated, and on April 4, 2016, the court issued a decision. As a result of the court order, the August 13, 2014, withdrawal was vacated and remanded to the Service for further consideration consistent with the order.

    In effect, the court's action returns the process to the proposed rule stage, and the status of the wolverine under the Act has effectively reverted to that of a proposed species for the purposes of consultation under section 7 of the Act. Therefore, this document notifies the public that we are reopening the comment period on the February 4, 2013, proposed rule to list the DPS of wolverine occurring in the contiguous United States as threatened, under the Act (78 FR 7864). We also announce that we will be initiating an entirely new status review of the North American wolverine, to determine whether this DPS meets the definition of an endangered or threatened species under the Act, or whether the species is not warranted for listing. Any listing determination we make must be made based on the best available information. We invite the public to comment on the proposed rule, and we request new information regarding the North American wolverine that has become available since the publication of the proposed rule to inform this status review.

    Public Comments

    We will accept written comments and information during this reopened comment period on our proposed rule to list the DPS of wolverine occurring in the contiguous United States as threatened that was published in the Federal Register on February 4, 2013 (78 FR 7864). We will consider information and recommendations from all interested parties. We are particularly interested in comments concerning:

    (1) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and regulations that may be addressing those threats.

    (2) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.

    (3) Any information on the biological or ecological requirements of the species, and ongoing conservation measures or efforts for the species and its habitat.

    (4) Current or planned activities in the areas occupied by the species and possible impacts of these activities on this species.

    (5) The reasons why we should or should not designate habitat as “critical habitat” under section 4 of the Act (16 U.S.C. 1531 et seq.) including whether and how the wolverine may benefit from such a designation; whether there are threats to the species from human activity, the degree to which it can be expected to increase due to a critical habitat designation, and whether that increase in threat outweighs the benefit of designation such that the designation of critical habitat may not be prudent.

    (6) Specific information on the amount and distribution of wolverine habitat, including den sites.

    (7) Specific information on the impacts of small population size and genetic diversity on the wolverine.

    (8) Information on the projected and reasonably likely impacts of climate change on the wolverine and its habitat, including the loss of snowpack and impacts to wolverine denning habitat.

    (9) Additional provisions the Service may wish to consider to conserve, recover, and manage the proposed DPS of the North American wolverine occurring in the contiguous United States.

    If you submitted comments or information on the proposed rule (78 FR 7864) during the initial comment periods from February 4, 2013, to May 6, 2013, from October 31, 2013 to December 2, 2013, or from February 4, 2014, to May 6, 2014, please do not resubmit them. Any such comments are incorporated as part of the public record of this rulemaking proceeding, and we will fully consider them in the preparation of our final determination. Our final determination will take into consideration all written comments and any additional information we receive during all comment periods. The final decision may differ from the proposed rule, based on our review of all information received during this rulemaking proceeding. If we receive significant new scientific information, we may need to reopen the public comment period so that the public can comment on the new information.

    You may submit your comments and materials concerning the proposed rule by one of the methods listed in ADDRESSES. We request that you send comments only by the methods described in ADDRESSES.

    If you submit a comment via http://www.regulations.gov, your entire comment—including any personal identifying information—will be posted on the Web site. We will post all hardcopy comments on http://www.regulations.gov as well. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

    Comments and materials we receive will be available for public inspection on http://www.regulations.gov at Docket No. FWS-R6-ES-2016-0106, and supporting documentation we used in preparing the proposed rule will be available for public inspection on the internet at https://www.fws.gov/mountain-prairie/es/wolverine.php or at http://www.regulations.gov at Docket No. FWS-R6-ES-2012-0107, or by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Montana Ecological Services Office (see FOR FURTHER INFORMATION CONTACT). You may obtain copies of the proposed rule on the Internet at http://www.regulations.gov at Docket No. FWS-R6-ES-2012-0107, or by mail from the Montana Ecological Services Office (see FOR FURTHER INFORMATION CONTACT). Please note that the 2012 docket has documents and other information related to the proposed rule, as well as the comments received and the proposed rule itself, and the 2016 docket is the correct docket for submission of comments.

    Authors

    The primary authors of this notice are the staff members of the Mountain Prairie Regional Office, U.S. Fish and Wildlife Service.

    Authority

    The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: September 19, 2016. Stephen Guertin, Acting Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2016-24929 Filed 10-17-16; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 635 [Docket No. 130417378-6933-01] RIN 0648-BD22 Atlantic Highly Migratory Species; Atlantic Shark Management Measures; Proposed Amendment 5b AGENCY:

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

    ACTION:

    Proposed rule; request for comments.

    SUMMARY:

    NMFS is amending the 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan (FMP) based on the results of the 2016 stock assessment update for Atlantic dusky sharks. Based on this assessment, NMFS determined that the dusky shark stock remains overfished and is experiencing overfishing. Consistent with the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), NMFS is proposing management measures that would reduce fishing mortality on dusky sharks and rebuild the dusky shark population consistent with legal requirements. The proposed measures could affect U.S. commercial and recreational fishermen who harvest sharks in the Atlantic Ocean, including the Gulf of Mexico and Caribbean Sea.

    DATES:

    Written comments must be received by December 22, 2016. NMFS will hold six public hearings on Draft Amendment 5b and this implementing proposed rule on November 9, November 15, November 16, November 21, and November 28, 2016. NMFS will also hold an operator-assisted public hearing via conference call and webinar for this proposed rule on December 12, 2016, from 2:00 p.m. to 4:00 p.m. EST. For specific locations, dates and times see the SUPPLEMENTARY INFORMATION section of this document.

    ADDRESSES:

    You may submit comments on this document, identified by NOAA-NMFS-2013-0070, by any one of the following methods:

    Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2013-0070, click the “Comment Now” icon, complete the required fields, and enter or attach your comments.

    Mail: Submit written comments to Margo Schulze-Haugen, NMFS/SF1, 1315 East-West Highway, National Marine Fisheries Service, SSMC3, Silver Spring, MD 20910.

    Instructions: Please include the identifier NOAA-NMFS-2013-0070 when submitting comments. Comments sent by any other method, to any other address or individual, or received after the close of the comment period, may not be considered by NMFS. All comments received are a part of the public record and generally will be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to the Atlantic Highly Migratory Species Management Division by email to [email protected], or fax to 202-395-7285.

    NMFS will hold 6 public hearings and 1 conference call on this proposed rule. NMFS will hold public hearings in Manalapan, NJ; Newport, RI; Belle Chasse, LA; Houston, TX; Melbourne, FL; and Manteo, NC; and via a public conference call. For specific locations, dates and times see the SUPPLEMENTARY INFORMATION section of this document.

    Copies of the supporting documents—including the draft environmental impact statement (DEIS), Regulatory Impact Review (RIR), Initial Regulatory Flexibility Analysis (IRFA), and the 2006 Consolidated Atlantic HMS FMP are available from the HMS Web site at http://www.nmfs.noaa.gov/sfa/hms/ or by contacting Tobey Curtis at 978-281-9273.

    FOR FURTHER INFORMATION CONTACT:

    Tobey Curtis at 978-281-9273 or Karyl Brewster-Geisz at 301-427-8503.

    SUPPLEMENTARY INFORMATION: Background

    The Atlantic commercial shark fisheries are managed primarily under the authority of the Magnuson-Stevens Act. The 2006 Consolidated HMS FMP and its amendments are implemented by regulations at 50 CFR part 635. A brief summary of the background of this proposed rule is provided below. Additional information regarding Atlantic HMS management can be found in the Draft Environmental Impact Statement (DEIS) for Amendment 5b to the 2006 Consolidated HMS FMP (Amendment 5b), the 2006 Consolidated HMS FMP and its amendments, the annual HMS Stock Assessment and Fishery Evaluation (SAFE) Reports, and online at http://www.nmfs.noaa.gov/sfa/hms/.

    Dusky Shark Stock Status and Management History

    NMFS has prohibited the retention of dusky sharks in commercial and recreational fisheries since 2000. In 2008, in response to a 2006 stock assessment declaring dusky sharks to be overfished with overfishing occurring despite this complete prohibition, NMFS adopted a rebuilding plan for the stock. This rebuilding plan, set out in Amendment 2 to the Consolidated HMS FMP, undertook a suite of measures to address dusky shark overfishing, focusing primarily on bycatch of the species in other shark fisheries. Major components of this plan—which are unchanged by this action—include a continued prohibition on retention of dusky sharks (§§ 635.22(c)(4) and 635.24(a)(5)), time/area closures (§ 635.21(d)), and the prohibition of landing sandbar sharks (the historic target species for the large coastal shark fishery) outside of the shark research fishery along with significant retention limit reductions in the bottom longline fishery where interactions were commonly occurring (§§ 635.24(a)(1), (2), and (3)). The terminal year for rebuilding was set at 2108, consistent with the assessment, which concluded that the stock could rebuild within 100 to 400 years. In 2011, three years into this 100-year rebuilding plan, a benchmark stock assessment for dusky sharks was completed through the Southeast Data, Assessment, and Review (SEDAR) 21 process (76 FR 62331, October 7, 2011), the first assessment for dusky sharks conducted within the SEDAR process. The 2011 stock assessment provided an update to a 2006 dusky shark stock assessment and concluded that the stock remained overfished with overfishing occurring.

    On October 7, 2011 (76 FR 62331), NMFS made stock status determinations for several shark species based on the results of the SEDAR 21 process. NMFS determined in the notice that dusky sharks, a prohibited species, were still overfished and still experiencing overfishing (i.e., their stock status has not changed from a 2006 assessment). The stock assessment recommended a decrease in dusky shark mortality of 58 percent against 2009 levels. NMFS announced its intent to prepare an Environmental Impact Statement (EIS) for Amendment 5 to the 2006 Atlantic Consolidated HMS FMP, which would assess the potential effects on the human environment of additional action proposed through rulemaking to rebuild and end overfishing of several stocks assessed in SEDAR 21, including dusky sharks, consistent with the Magnuson-Stevens Act.

    NMFS considered alternatives to rebuild several overfished Atlantic shark species, including dusky sharks, in Draft Amendment 5 (77 FR 70552, November 26, 2012). The proposed measures were designed to reduce fishing mortality and effort, while ensuring that a limited sustainable shark fishery for certain species could be maintained consistent with legal obligations and the 2006 Consolidated HMS FMP. NMFS received substantial public comment disputing the basis for the proposed dusky shark measures, and NMFS decided further analysis was necessary on those measures in a separate FMP amendment, EIS, and proposed rule. NMFS finalized management measures for the other Atlantic shark species included in Draft Amendment 5 in the Final Amendment 5a and associated final rule (78 FR 40318, July 3, 2013), while announcing that dusky shark management measures would be included in an upcoming, separate rulemaking known as Amendment 5b (i.e., this rule).

    NMFS prepared a Predraft for Amendment 5b in March 2014 that considered the feedback received on Draft Amendment 5, solicited additional public input, and consulted with its Advisory Panel at the Spring 2014 meeting. The Predraft considered alternatives that were not included in Draft Amendment 5, as well as new information.

    Following the Predraft for Amendment 5b, additional information regarding dusky sharks became available that was not available at the time of the SEDAR 21 stock assessment. NMFS, in response to two petitions from environmental groups regarding listing dusky sharks under the Endangered Species Act (ESA), conducted an ESA Status Review for the Northwest Atlantic population of dusky sharks, which was completed in October 2014. That status review included an updated analysis of three fishery-independent surveys, the Northeast Fisheries Science Center (NEFSC) Coastal Shark Bottom Longline Survey (NELL), the Virginia Institute of Marine Science Shark Longline Survey (VIMS LL), and the University of North Carolina Shark Longline Survey (UNC LL), using the same methodology as the SEDAR 21 Data Workshop (McCandless et al., 2014). The updated analysis included data from 2010—2012 and showed an increasing trend in dusky shark indices of abundance for all three surveys since 2009, the terminal year of data used for dusky sharks in the SEDAR 21 stock assessment. The ESA Status Review Team concluded that, based on the most recent stock assessment, abundance projections, updated analyses, and the potential threats and risks to population extinction, the dusky shark population in the Northwest Atlantic and Gulf of Mexico has a low risk of extinction currently and in the foreseeable future. On December 16, 2014, NMFS announced a 12-month finding that determined that the Northwest Atlantic and Gulf of Mexico population of dusky sharks did not warrant listing under the ESA at that time (79 FR 74954).

    NMFS applied additional restrictions in the shark research fishery to reduce dusky shark mortality in 2013 (refer to the Amendment 5b DEIS; see ADDRESSES). This included establishing a dusky shark interaction cap for the entire shark research fishery of 45 dusky sharks per year, with more specific caps within the regions, which has been an effective way to minimize dusky shark dead discards within the limited shark research fishery, which only involves 6 to 10 participants annually.

    By Fall 2015, as described in an HMS staff presentation to its Advisory Panel, the reductions in dusky shark mortality since 2009, and the increasing population trends from fishery-independent surveys, had indicated that management actions may have already reduced dusky shark mortality to levels prescribed by the SEDAR 21 stock assessment (i.e., reduced mortality by at least 58 percent against 2009 levels). In light of this updated information, the Southeast Fisheries Science Center (SEFSC) prioritized an update of the SEDAR 21 dusky shark stock assessment using data through 2015, to be completed in summer 2016. It was determined that further action on Amendment 5b should wait until after the completion of the assessment update to ensure that it was based on the best available scientific information.

    On October 27, 2015, the environmental advocacy organization Oceana filed a complaint against NMFS in Federal district court alleging violations of the Magnuson-Stevens Act and Administrative Procedure Act with respect to delays in taking action to rebuild and end overfishing of dusky sharks. A settlement agreement was reached between NMFS and the Plaintiffs on May 18, 2016, regarding the timing of the pending agency action. This settlement acknowledged that NMFS was in the process of developing an action to address overfishing and rebuilding of dusky sharks and that an assessment update was ongoing and stipulated that, based upon the results of the assessment update, NMFS would submit a proposed rule to the Federal Register no later than October 14, 2016.

    A draft of the SEDAR 21 stock assessment update for dusky sharks became available in July 2016 and underwent internal NMFS peer review in August 2016. The assessment update added 2010-2015 data inputs from the same data sources vetted and approved in SEDAR 21 (fishery-dependent and -independent data, relative effort series, etc.) to the accepted models in order to update the status of the stock using the most recent data. Five model scenarios were run, all of which were considered to be plausible states of nature according to SEDAR 21 (i.e., no single model is considered preferred to the others). The peer reviewers did not identify any issues or concerns with the methods applied or the results or conclusions of the assessment update. However, SEDAR 21 and the 2016 update noted a high level of uncertainty in the input observations, as well as the model outputs, beyond that of many other Atlantic shark stock assessments. The final SEDAR 21 stock assessment update report was made available in September 2016 and is available on the SEDAR Web site (http://sedarweb.org/sedar-21).

    Despite including much of the same data as those used in the 2014 ESA Dusky Shark Status Review Report (McCandless et al., 2014), which suggested mostly positive trends in dusky shark relative abundance, the 2016 assessment update concluded that the stock is still overfished and experiencing overfishing, although the level of overfishing has decreased compared to previous assessments and is low. Specifically, Spawning Stock Fecundity (SSF) relative to SSFMSY (proxy biomass target) ranges from 0.41 to 0.64 (i.e., overfished) (median = 0.53). The fishing mortality rate (F) in 2015 relative to FMSY is estimated to be 1.08-2.92 (median = 1.18) (values >1 indicate overfishing).

    The rebuilding year was also updated according to the new model projections. The target rebuilding year was calculated as the amount of time needed for the stock to reach the target (SSFMSY) with a 70% probability in the absence of fishing mortality (F=0) plus one mean generation time (40 years). The updated projections estimate that the target rebuilding years range from 2084-2204, with a median of 2107. The previous rebuilding year under SEDAR 21 was 2108.

    In order to achieve rebuilding by 2107 with a 50% probability, the final models projected that F on the stock would have to be reduced 24-80% (median = 35%) from 2015 levels. The assessment update states that the stock can sustain small amounts of fishing mortality during its rebuilding. When developing measures to address overfishing or rebuilding in HMS fisheries, NMFS' general approach is that measures should have at least a 50-percent probability of success in achieving those goals. For Atlantic highly migratory sharks, however, NMFS has, since 1999, typically used a 70-percent probability for sharks, in light of their late age to maturity, reproduction, population growth rate, and other considerations. Given particular issues specific to the 2016 SEDAR 21 dusky shark assessment update (explained below), NMFS used the F reduction associated with the 50-percent probability to develop Draft Amendment 5b.

    While peer reviewers did not identify any issues with how the 2016 assessment update was conducted, SEDAR 21 and the 2016 update noted a high level of uncertainty in the input observations, as well as the model outputs, beyond that of many other Atlantic shark stock assessments. Data on dusky sharks is limited, given the retention prohibition and fact that interactions with prohibited sharks are rare events, and dusky shark sharks are often misidentified. Data input to the models came from different types of fishing vessels/gears and time series collected by different entities, including the Atlantic Shark Bottom Longline Observer Program, Shark Bottom Longline Research Fishery, the Atlantic Pelagic Observer Program, the recreational Large Pelagics Survey, the Northeast Fisheries Science Center's Bottom Longline Survey, and the Virginia Institute of Marine Science's Bottom Longline Survey. Based on these data, the five plausible model scenarios in the 2016 assessment update produced a very wide range of estimates (overfishing and overfished status) and outcomes (F reductions, rebuilding timelines, etc.). In light of the range of estimates and outcomes, NMFS used the median of the five scenarios in its development of measures in Draft Amendment 5b to address overfishing and rebuilding of dusky sharks. Given the range of plausible scenarios from the assessment update, using the median of multiple scenarios is an acceptable method because it is an objective approach for reconciling a range of management options. It is also consistent with the management approach to similar situations in other fisheries (e.g., New England Fishery Management Council's Scientific and Statistical Committee's recommendation for yellowtail flounder in September 2009; Scott et al. 2016).

    Because of the above issues, NMFS decided it was appropriate from a scientific, technical perspective to use the F reduction associated with the 50-percent probability when developing Draft Amendment 5b. While NMFS typically uses a 70-percent probability for Atlantic highly migratory shark species, the 2016 update has a higher level of uncertainty than other shark assessments and presents a more pessimistic view of stock status than was expected based on our preliminary review of the same information and other available information. Such information includes the information reviewed in the ESA Status Review, reductions in U.S. fleet fishing effort due to management actions, and updated age and growth information indicating that dusky sharks are more productive than previously thought (Natanson et al. 2014). This information could not be used in the 2016 assessment update, because assessment updates only incorporate data inputs (e.g., time series, life history parameters, etc.) that were previously vetted through the SEDAR process and approved as part of the most recent benchmark assessment. Here, that was the 2011 benchmark stock assessment (SEDAR 21). Based on its review of the 2016 update, understanding about the operation of the HMS fisheries under current management measures, and other available information, the F estimate associated with the 50-percent probability more accurately reflects current fishing pressure and accounts for the new information on dusky shark productivity than the F estimate associated with the 70-percent probability. From a statistical perspective, the wider confidence band in the projections results in the F estimate associated with a 70-percent probability being substantially lower than the apical value. Thus, the F reduction associated with 70-percent goes well beyond what we would consider appropriately precautionary even for species with relatively slow life history such as sharks (refer to the Amendment 5b DEIS for more details; see ADDRESSES). NMFS also notes that the rebuilding year (i.e., length of time the species could rebuild with no fishing mortality plus one mean generation time) was calculated using a 70-percent probability, as is typically done in assessments, which additionally increases the likelihood of achieving rebuilding within the mandated time period.

    Therefore, based on the 2016 assessment update, NMFS needs to reduce dusky shark fishing mortality by approximately 35% relative to 2015 levels to rebuild the stock by the year 2107. NMFS also needs to address overfishing, but the level of overfishing is not high (median F2015/FMSY is 1.18). NMFS solicits public comment on its approach in Draft Amendment 5b based on the 2016 update, particularly ideas on different approaches and any scientific support for them.

    Annual Catch Limits (ACLs) and Accountability Measures (AMs)

    The Magnuson-Stevens Act requires that each FMP establish a mechanism for specifying ACLs at a level such that overfishing does not occur, including measures to ensure accountability (AMs) (16 U.S.C. 1853(a)(15)). In 2010, NMFS addressed these requirements for Atlantic highly migratory shark stocks in Amendment 3 to the 2006 Consolidated HMS FMP (Amendment 3) (NMFS 2010), including sharks in the prohibited shark complex, which includes dusky sharks. Draft Amendment 5b clarifies that the ACL for the 19 species of sharks in the prohibited shark complex is zero. NMFS believes that an ACL of zero is appropriate and, along with existing and proposed conservation and management measures, will prevent overfishing.

    In its proposed revisions to the NS 1 guidelines (80 FR 2786; January 20, 2015), NMFS explains in § 600.310(g)(3) that if an ACL is set equal to zero and the AM for the fishery is a closure that prohibits fishing for a stock, additional AMs are not required if only small amounts of catch (including bycatch) occur, and the catch is unlikely to result in overfishing. According to the available analyses, prohibited shark species—basking sharks (Campana 2008), night sharks (Carlson et al. 2008), sand tiger sharks (Carlson et al., 2009), white sharks (Curtis et al. 2014), and bigeye thresher sharks (Young et al. 2016)—are not experiencing overfishing. While such analyses have not been completed for all other prohibited shark species, there is no information suggesting that overfishing is occurring on other members of this complex. In addition, commercial and recreational retention of prohibited sharks is prohibited, and there is only a small amount of bycatch occurring for the complex. The annual number of observed bycatch mortalities of prohibited sharks ranged from 293 to 1,829 sharks per year over the time series, and the most recent observed three-year average annual mortality for all sharks in the complex was 498 sharks (refer to the DEIS for this action for more detail; see ADDRESSES).

    NMFS acknowledges that, in addition to the small amount of bycatch, there is also information on a small amount of occasional prohibited shark landings. Based on observer and other data and input from the HMS AP, NMFS believes that these landings most likely are due to misidentification issues and lack of awareness of shark fishing regulations, which would be addressed through this action. Even though dusky sharks are experiencing overfishing, NMFS believes that an ACL of zero is still appropriate for the prohibited shark complex. The estimated level of overfishing for dusky sharks is not high (median F2015/FMSY is 1.18; values >1 indicates overfishing), and measures under Draft Amendment 5b and this proposed rule are expected to prevent this overfishing (See “Proposed Measures” below.) NMFS notes that there would be policy and scientific/data concerns if we were to specify an ACL other than zero. As noted earlier, there was a high level of uncertainty in the 2016 assessment update, given limited data on dusky sharks, multiple data sources, and five plausible model scenarios. The update had five different total allowable catch (TAC) estimates ranging from 7,117 to 47,400 lb (3.2 to 21.5 mt) dressed weight (median = 27,346 lb (12.4 mt) dressed weight). NMFS does not have a basis for picking one model over another, and is concerned that setting an ACL based on the highly uncertain TAC estimates could encourage increased catch. Retention of dusky sharks is prohibited, thus NMFS believes that the ACL for dusky sharks (along with other species in the prohibited shark complex) should be zero.

    NMFS is proposing additional measures in Draft Amendment 5b and this proposed rule to prevent overfishing of dusky sharks (see “Proposed Measures” below). These measures are in addition to previously-adopted shark management measures. NMFS considers these and other management measures for dusky sharks (e.g., prohibition on retention) to be AMs. After considering the proposed revisions to the NS1 guidelines at 50 CFR 600.310(g)(3), NMFS does not believe additional AMs are needed for dusky sharks or other prohibited sharks. Over the past years, NMFS has taken significant regulatory action that has reduced fishing effort and mortality on shark species. Most significantly, Amendment 2 regulations, which were implemented in July 2008 (73 FR 35778, June 24, 2008, as corrected at 73 FR 40658, July 15 2008), dramatically changed how the directed shark fishery (which had frequent interactions with dusky sharks) operates by, among other things, reducing the commercial trip limit from 4,000 lb (1.81 mt) dw to 36 non-sandbar LCS per trip (approximately 1,213 lb or 0.55 mt dw), significantly reducing the sandbar quota and prohibiting the retention of sandbar sharks outside a limited shark research fishery, and requiring that sharks be landed with their fins attached. Because dusky sharks have a similar distribution to sandbar sharks, and they were frequently caught together, measures that reduced sandbar shark catches also reduced dusky shark bycatch. To address bycatch of dusky sharks on bottom longline gear, the quota for sandbar sharks was reduced by 80 percent, leaving only a small, very closely monitored research fishery. Other measures to reduce dusky shark bycatch, which remain in place, included limiting the number of vessels authorized to land sandbar sharks and setting a finite number of trips that would be taken targeting sandbar sharks in the research fishery. Once this quota was met, there would be no more targeting or possession of sandbar sharks and other shark species within the shark research fishery. Implementing a more restrictive retention limit for non-sandbar LCS (e.g., 36 non-sandbar LCS/vessel/trip for directed permit holders) was also adopted to result in reduced fishing effort targeting sharks with bottom longline (BLL) gear. NMFS also adopted measures that would not allow dusky sharks to be collected for public display, limiting the number of dusky sharks authorized for research, not allowing certain species of sharks that look like dusky sharks to be possessed in recreational fisheries, maintaining the mid-Atlantic shark closed area, and implementing additional time/area closures for BLL gear as recommended by the South Atlantic Fishery Management Council in its Amendment 14. These measures have already reduced effort and fishing mortality, which will increase the likelihood of rebuilding dusky sharks.

    Additionally, Amendment 7 to the 2006 Consolidated HMS FMP in 2015 effected management measures in the pelagic longline fishery by implementing measures to control bluefin tuna bycatch in that fishery. As a result, pelagic longline fishery management and monitoring has changed significantly and, at least in the initial years of management under these controls, effort has decreased.

    The time series NMFS used to evaluate the impact of conservation and management measures and fishing mortality on the prohibited shark complex begins in 2008 to coincide with the implementation of Amendment 2 and ends in 2015, the most recent year for which data are available. Bycatch data are not available in as timely a manner as data on landed catch, and interactions with prohibited sharks are rare events, which can be highly variable from year to year. Thus, three-year rolling averages were used to smooth interannual variability in the observed catches.

    On an annual basis, NMFS will continue to monitor the prohibited shark complex, based on a comparison of the most recent three-year average mortality to previous three-year averages to evaluate the impact of conservation and management measures, and evaluate fishing mortality on the prohibited shark complex. NMFS anticipates that bycatch of dusky and other prohibited sharks will continue to occur; in other words, the three-year averages will be higher than zero. However, small amounts of bycatch are permissible where the ACL is set to zero and the bycatch is small and does not lead to overfishing. For the reasons discussed above, NMFS does not believe that further AMs are needed to prevent overfishing. If significant changes in the three-year average mortality occur, NMFS would evaluate trends in relative abundance data from species within the prohibited shark complex and evaluate current fisheries practices and look for patterns in bycatch mortality of species within the complex to determine if additional measures are needed to address overfishing.

    NMFS solicits public comment on its approach to the ACL/AMs for the prohibited shark complex and whether other approaches might address the scientific and management concerns noted above.

    Proposed Measures

    The objectives of Draft Amendment 5b are to end overfishing and rebuild the dusky shark stock. This section summarizes NMFS' proposed, preferred measures. NMFS expects that these measures will prevent overfishing and achieve at least a 35% mortality reduction for dusky sharks to ensure stock rebuilding with at least 50% probability in conjunction with the measures already in place. A description of other alternatives analyzed is provided in the Initial Regulatory Flexibility Analysis (IRFA) summary, below. NMFS' detailed analysis of a range of alternatives is in the DEIS for Draft Amendment 5b (see ADDRESSES for how to get a copy of the DEIS). In developing the alternatives, NMFS considered the existing rebuilding plan, other conservation and management measures that have been implemented in the HMS fisheries since 2008 and that have affected the shark fisheries or shark bycatch in other fisheries, public response to the results of SEDAR 21 and the 2016 SEDAR 21 update, public comments received on Draft Amendment 5 and the Amendment A5b Predraft and comments at Advisory Panel meetings during the course of development of this action.

    A number of alternatives that were considered and/or commented on during the development of this action are not preferred alternatives at this time, because they are not needed to meet the objectives of the amendment and would result in negative economic impacts, would not meet the objectives of the amendment, would not be logistically/administratively feasible, are not scientifically supportable, and/or they would result in other unnecessary, negative impacts, as described in the DEIS (see ADDRESSES). In general terms, these non-preferred alternatives included requirements for vessels to carry shark identification placards, prohibiting recreational retention of all ridgeback sharks, increasing the recreational minimum size limit, allowing only catch and release of all sharks in the recreational fishery, limiting the number of hooks that could be deployed by pelagic longline vessels, dusky shark time-area closures, closure of the pelagic longline fishery, and individual dusky shark bycatch quotas.

    As explained in this proposed rule and the DEIS, NMFS has already taken significant actions that reduce fishing effort and mortality. After extensive review of available management measures, NMFS has determined that the proposed measures will prevent overfishing and rebuild dusky sharks. However, we specifically request comment from the public on other potential management measures and any scientific, policy, or other support for them. In response to public comment, NMFS may make changes in Final Amendment 5b and the final rule by modifying the proposed measures or adopting different or additional measures, which are not currently preferred.

    Recreational Measures

    The two proposed recreational measures address permitting (Alternative A2) and gear use (Alternative A6a). The first proposed measure would require HMS permit holders that recreationally fish for, retain, possess, or land sharks to obtain a “shark endorsement,” which would require completing an online shark identification and fishing regulation training course, before they will be permitted to fish for, retain, possess, or land sharks. This would include HMS Angling and Charter/Headboat permit holders, as well as General category and Swordfish General Commercial permit holders when participating in a registered HMS fishing tournament. Obtaining the shark endorsement would be included in the annual HMS Angling, Charter/Headboat, Atlantic tunas General category, and Swordfish General Commercial permit application or annual renewal process and would not result in any additional fees beyond the cost of the permit itself. NMFS requests public input on how to most effectively implement the requirement through this process, including the appropriate effective date and implementation strategy. Unlike changing permit categories (which can only be done within 45 calendar days of the date of issuance of the permit), vessel owners could obtain a shark endorsement, which would be added to their relevant permit, throughout the year. An online quiz, administered during the application or renewal process, would be required in order to obtain the shark endorsement. This online quiz would focus on identification of prohibited species (e.g., dusky sharks), current recreational rules and regulations, and safe handling instructions. Currently, retention of dusky sharks is prohibited in the recreational fishery. Mortality or landings in the recreational fishery, then, is likely a result of either species misidentification or a lack of knowledge about prohibited shark species regulations or safe handling to minimize harm to accidentally caught fish. The application process for the shark endorsement would also provide an opportunity for focused outreach, and the list of shark endorsement holders would allow for more targeted surveys, increasing the reliability of recreational shark catch estimates. As a result of this measure, NMFS expects accidental retention of dusky sharks to decrease and for dusky shark fishing mortality to decrease in recreational fisheries. Therefore, implementing this measure would likely result in direct short- and long-term moderate beneficial ecological impacts.

    The second proposed measure would require HMS permit holders that recreationally fish for, retain, possess, or land sharks (the same permit holders as those described above) to use circle hooks when fishing for, retaining, possessing, or landing sharks. Any shark caught on a hook other than a circle hook would have to be released. This requirement is intended to apply across the recreational shark fishery. To ensure that the measure encompasses all shark fishing activity, we also specify that a person on board an HMS-permitted vessel fishing with natural baits and using wire or heavy (200 lb test or greater) monofilament or fluorocarbon leaders (i.e., the terminal tackle most commonly used for shark fishing) would be presumed to be fishing for sharks. NMFS is specifically inviting public comment on whether this approach will ensure that the measure applies to the entire fishery or whether different indicators of recreational shark fishing should be adopted.

    By requiring circle hooks across the recreational shark fishery, dusky shark mortality is expected to decrease. Most evidence suggests that circle hooks reduce shark at-vessel and post-release mortality rates without significantly reducing catchability compared to J-hooks, although it varies by species, gear configuration, bait, and other factors. Willey et al. (2016) found that 3% of sharks caught recreationally with circle hooks were deep hooked while 6% caught on J-hooks were deep hooked. Campana et al. (2009) observed that 96% of sharks that were deep hooked were severely injured or dead while 97% of sharks that were hooked superficially (mouth or jaw) were released healthy and with no apparent trauma. As deep hooked sharks are more likely to die, Willey et al.'s (2016) results indicate circle hooks could reduce mortality of sharks deep-hooked by J-hooks by approximately 48 percent (i.e., a 50 percent reduction from 96 percent deep hooked sharks). For this reason, this alternative would likely have direct moderate beneficial impacts in both the short- and long-term for dusky sharks. Requiring these hooks whenever this gear/bait combination is used and further specifying that sharks may not be retained unless circle hooks have been used is expected to reduce dusky shark mortality because dusky sharks that are inadvertently caught in the recreational fishery would be more easily released in better condition, reducing dead discards and post-release mortality.

    Under these recreational measures combined, HMS permitted recreational vessels without a shark endorsement and/or not fishing with circle hooks would be prohibited from retaining any sharks.

    Commercial Measures

    In total, the DEIS considers nine main commercial alternatives that cover education, outreach, gear, and time/area measures for pelagic longline, bottom longline, and shark gillnet fisheries. The four commercial fishery measures that are proposed would address dusky shark post-release mortality (Alternatives B3 and B9), avoidance (Alternative B6), and outreach and education (Alternatives B5 and B6) and thus would decrease fishing mortality of dusky sharks in the commercial fisheries. The first proposed measure would require that all pelagic longline fishermen release all sharks that are not being boarded or retained by using a dehooker, or by cutting the gangion no more than three feet from the hook. This alternative would reduce post-release mortality on dusky sharks because using a dehooker or cutting the gangion no more than three feet from the hook would reduce the amount of trailing gear attached to released dusky sharks. A study on recreationally caught thresher sharks (Sepulveda et al. 2015), suggested that thresher sharks that had ~2 m of trailing gear had 88% higher mortality rates than those without. While this study focuses on thresher sharks and not dusky sharks, its conclusion regarding the effects of trailing gear on post-release mortality rates of sharks can be presumed to be generally applicable to other sharks, although further research would be needed to better quantify the percent mortality reductions that could be expected under different species and gear combinations. NMFS Tech Memo OPR-29 on marine turtle mortality indicates that reducing gear left on sea turtles reduces post-interaction mortality of mouth-hooked turtles by 25-33%, further supporting the approach that reducing trailing gear on animals generally improves post-release survival. Because it would apply to all sharks that are not being retained, it would also reduce misidentification problems that occur in identifying dusky sharks from other shark species, because fishermen would have to cut the gangion closer to the shark, allowing a better view for identification purposes. Therefore, implementing this measure is anticipated to have direct short- and long-term minor, beneficial ecological impacts.

    The second proposed measure would require additional training on shark identification and safe handling for HMS permitted pelagic longline, bottom longline, and shark gillnet vessels. The course would be taught in conjunction with current Protected Species Safe Handling, Release, and Identification workshops that these vessel owners and operators are already required to attend. The training course would provide information regarding shark identification and regulations, as well as best practices to avoid interacting with dusky sharks and how to minimize mortality of dusky sharks and other prohibited species caught as bycatch. This training course requirement provides outreach to those who are likely to interact with dusky sharks, and should decrease interactions and post-release mortality of dusky sharks. Implementing this measure could result in direct, moderate, beneficial ecological impacts after these vessel owners and operators complete the training course.

    In the third proposed measure, NMFS would develop additional outreach materials for commercial fisheries regarding shark identification, and require that all HMS permitted pelagic longline, bottom longline, and shark gillnet vessels abide by a dusky shark fleet communication and relocation protocol. The protocol would require vessels to report the location of dusky shark interactions over the radio to other vessels in the area and that subsequent fishing sets on that fishing trip could be no closer than 1 nautical mile from where the encounter took place. Providing the fleet with more information regarding dusky shark locations and avoiding areas and conditions where dusky sharks are located should reduce dusky shark bycatch. This additional awareness from enhanced outreach methods and the fleet communication and relocation protocol would have direct short- and long-term minor beneficial ecological impacts as it would help reduce bycatch of dusky sharks.

    The fourth proposed measure would require the use of circle hooks by HMS directed limited access shark permit holders fishing with bottom longline gear. Circle hooks are already required in the pelagic longline fishery, and this would extend that requirement to the bottom longline fishery to help reduce dusky shark mortality. Currently, approximately 25% of bottom longline vessels do not solely use circle hooks, so this measure would result in additional reductions in dusky shark post-release mortality on those vessels that switch to circle hooks. As in the recreational fishery circle hook measure described above, implementing a circle hook requirement would reduce post-release mortality rates and have direct moderate beneficial impacts in both the short- and long-term for dusky sharks.

    Request for Comments

    NMFS is requesting comments on the alternatives and analyses described in this proposed rule and contained in Draft Amendment 5b and its DEIS, IRFA and RIR. Comments may be submitted via http://www.regulations.gov, mail, or fax. Comments may also be submitted at a public hearing (see Public Hearings and Special Accommodations below). We solicit comments on this proposed rule by December 22, 2016 (see DATES and ADDRESSES).

    Public Hearings

    Comments on this proposed rule may be submitted via http://www.regulations.gov, mail, or fax and comments may also be submitted at a public hearing. NMFS solicits comments on this proposed rule by December 22, 2016. During the comment period, NMFS will hold 6 public hearings and 1 conference call for this proposed rule. The hearing locations will be physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Guý DuBeck at 301-427-8503, at least 7 days prior to the meeting. NMFS has also asked to present information on the proposed rule and draft Amendment 5b to the Caribbean, Gulf of Mexico, South Atlantic, Mid-Atlantic, and New England Fishery Management Councils and the Atlantic States Marine Fisheries Commissions at their meetings during the public comment period. Please see their meeting notices for dates, times, and locations. In addition, NMFS will have an HMS Advisory Panel meeting on December 1-2, 2016, to discuss this rulemaking. NMFS will announce the location and times of HMS Advisory Panel meeting in a future Federal Register notice.

    Table 1—Dates, Times, and Locations of Upcoming Public Hearings and Conference Call Venue Date/time Meeting location Location contact information Public Hearing November 9, 2016, 5 p.m.-8 p.m. Manalapan, NJ Monmouth County Public Library—Headquarters, 125 Symmes Road, Manalapan, NJ 07726. Public Hearing November 15, 2016, 5:30 p.m.-8:30 p.m. Newport, RI Hotel Viking, 1 Bellevua Ave, Newport, RI 02840. Public Hearing November 15, 2016, 5 p.m.-8 p.m. Belle Chasse, LA Belle Chasse Branch Library, 8442 Louisiana 23, Belle Chasse, LA 70037. Public Hearing November 16, 2016, 5 p.m.-8 p.m. Houston, TX Clear Lake City-County Freeman Branch Library, 16616 Diana Lane, Houston, TX 77062. Public Hearing November 21, 2016, 5 p.m.-8 p.m. Melbourne, FL Melbourne Public Library, 540 E. Fee Ave, Melbourne, FL 32901. Public Hearing November 28, 2016, 5 p.m.-8 p.m. Manteo, NC Commissioners Meeting Room, Dare County Administration Building, 954 Marshall C. Collins Dr., Manteo, NC 27954. Conference call December 12, 2016, 2 p.m.-4 p.m. To participate in conference call, call: (888) 790-3514.
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  • The public is reminded that NMFS expects participants at the public hearings to conduct themselves appropriately. At the beginning of each public hearing, a representative of NMFS will explain the ground rules (e.g., alcohol is prohibited from the hearing room; attendees will be called to give their comments in the order in which they registered to speak; each attendee will have an equal amount of time to speak; and attendees should not interrupt one another). At the beginning of the conference call, the moderator will explain how the conference call will be conducted and how and when attendees can provide comments. The NMFS representative will attempt to structure the meeting so that all attending members of the public will be able to comment, if they so choose, regardless of the controversial nature of the subject(s). Attendees are expected to respect the ground rules, and, if they do not, they may be asked to leave the hearing or may not be allowed to speak during the conference call.

    Classification

    Pursuant to the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that the proposed rule is consistent with the 2006 Consolidated HMS FMP and its amendments, other provisions of the Magnuson-Stevens Act, ATCA, and other applicable law, subject to further consideration after public comment.

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

    NMFS prepared a DEIS for this proposed rule that discusses the impact on the environment that would result from this rule. A copy of the DEIS is available from NMFS (see ADDRESSES). The Notice of Availability of the DEIS is publishing in the Federal Register on the same day as this proposed rule. A summary of the impacts of the alternatives considered is described above.

    Paperwork Reduction Act (PRA)

    This proposed rule would require HMS-permitted recreational fishermen to obtain a shark endorsement in order to fish for, retain, possess, or land sharks. Public comment is sought regarding: whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to (enter office name) at the ADDRESSES above, and by email to [email protected] or fax to (202) 395-7285.

    Notwithstanding any other provision of the law, no person is required to respond to, nor shall any person be subject to, a 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.

    Regulatory Flexibility Act

    An initial regulatory flexibility analysis (IRFA) was prepared, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact this proposed rule, if adopted, would have on small entities. A summary of the analysis follows. A copy of this analysis is available from NMFS (see ADDRESSES).

    Description of the Reasons Why Action Is Being Considered

    As described in the preamble of this rule and in the Draft Amendment 5b DEIS (see ADDRESSES), the proposed action is designed to provide measures in addition to those previously adopted to further address the overfished and overfishing occurring status of the dusky shark stock. NMFS previously considered alternatives for management of dusky sharks in Draft Amendment 5, which proposed measures that were designed to reduce fishing mortality and effort in order to prevent overfishing and rebuild various overfished Atlantic shark species, including dusky sharks, while ensuring that a limited sustainable shark fishery for certain species could be maintained consistent with legal obligations and the 2006 Consolidated HMS FMP. After reviewing all of the comments received, NMFS determined further analyses were warranted on measures pertaining to dusky sharks in a separate FMP amendment (Amendment 5b), EIS, and this proposed rule.

    Statement of the Objectives of, and Legal Basis for, the Proposed Rule

    The objectives of, and legal basis for, this proposed rule are summarized in the preamble of this rule and in the Draft Amendment 5b DEIS (see ADDRESSES).

    Description and Estimate of the Number of Small Entities To Which the Proposed Rule Would Apply

    This proposed rule is expected to directly affect commercial pelagic longline, bottom longline, shark gillnet, and recreational shark fishing vessels that possess HMS permits. To fish for Atlantic HMS, pelagic longline vessels must possess an Atlantic shark limited access permit, an Atlantic swordfish limited access permit, and an Atlantic Tunas Longline category permit. For the recreational management measures, the proposed management measures would only directly apply to small entities that are Charter/Headboat permit holders that provide for-hire trips that target sharks. Other HMS recreational fishing permit holders are considered individuals, not small entities.

    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. The Small Business Administration (SBA) has established size standards for all other major industry sectors in the U.S., including the scenic and sightseeing transportation (water) sector (NAICS code 487210, for-hire), which includes charter/party boat entities. The Small Business Administration (SBA) has defined a small charter/party boat entity as one with average annual receipts (revenue) of less than $7.5 million.

    Regarding those entities that would be directly affected by the recreational management measures, HMS Angling (Recreational) category permits are typically obtained by individuals who are not considered businesses or small entities for purposes of the RFA. Additionally, while Atlantic Tunas General category and Swordfish General commercial permit holders hold commercial permits and are usually considered small entities, because the proposed management measures would only affect them when they are fishing under the recreational regulations for sharks during a registered tournament, NMFS is not considering them small entities for this rule. However, because vessels with the HMS Charter/Headboat category permit are for-hire vessels, these permit holders can be regarded as small entities for RFA purposes. At this time, NMFS is unaware of any charter/headboat businesses that could exceed the SBA receipt/revenue thresholds for small entities. Overall, the recreational alternatives would impact a portion of the 3,596 HMS Charter/Headboat permit holders interested in shark fishing.

    Regarding those entities that would be directly affected by the commercial management measures, the average annual revenue per active pelagic longline vessel is estimated to be $187,000 based on the 170 active vessels between 2006 and 2012 that produced an estimated $31.8 million in revenue annually. The maximum annual revenue for any pelagic longline vessel between 2006 and 2015 was less than $1.9 million, well below the NMFS small business size standard for commercial fishing businesses of $11 million. Other non-longline HMS commercial fishing vessels typically generally earn less revenue than pelagic longline vessels. Therefore, NMFS considers all Atlantic HMS commercial permit holders to be small entities. The preferred commercial alternatives would apply to the 280 Atlantic tunas Longline category permit holders and 224 directed shark permit holders. Of these 280 permit holders, only 136 have Individual Bluefin Quotas (IBQ) shares required to go commercial pelagic longline fishing.

    NMFS has determined that the preferred alternatives would not likely directly affect any small organizations or small government jurisdictions defined under RFA. More information regarding the description of the fisheries affected, and the categories and number of permit holders, can be found in Chapter 3 of the Draft Amendment 5b DEIS (see ADDRESSES).

    Description of the Projected Reporting, Record-Keeping, and Other Compliance Requirements of the Proposed Rule

    Several of the preferred alternatives in Draft Amendment 5b would result in reporting, record-keeping, and compliance requirements that may require new Paperwork Reduction Act (PRA) filings and some of the preferred alternatives would modify existing reporting and record-keeping requirements, and add compliance requirements. NMFS estimates that the number of small entities that would be subject to these requirements would include the Atlantic tuna Longline category (280), Directed and Incidental Shark Limited Access (224 and 275, respectively), and HMS Charter/Headboat category (3,596) permit holders.

    Recreational Alternatives

    The preferred recreational alternative, A2, would require recreational fishermen fishing for, retaining, possessing, or landing sharks to obtain a shark endorsement in addition to other existing permit requirements. Obtaining the shark endorsement would be included in the online HMS permit application and renewal processes and would require the applicant to learn about prohibited shark species identification, regulations, and safe handling guidelines, and then complete a short quiz focusing on shark species identification. The applicant would simply need to indicate the desire to obtain the shark endorsement, after which he or she would be directed to a short online quiz that would take minimal time to complete. Adding the endorsement to the permit and requiring applicants to take the online quiz to obtain the endorsement will require a modification to the existing PRA for the permits.

    Commercial Measures Alternatives

    Alternative B5, a preferred alternative, would require completion of shark identification and fishing regulation training as a new part of all Safe Handling and Release Workshops for HMS pelagic longline (PLL), BLL, and shark gillnet vessel owners and operators. The training course would provide information regarding shark identification and regulations, as well as best practices to avoid interacting with dusky sharks and how to minimize mortality of dusky sharks caught as bycatch. Compliance with this course requirement would be mandatory and be a condition for permit renewal. A certificate would be issued to all commercial pelagic longline vessel owners indicating compliance with this requirement and the certificate would be required for permit renewal.

    Alternative B6, a preferred alternative, would require that all vessels with an Atlantic shark commercial permit and fishing with pelagic longline, bottom longline, or shark gillnet gear abide by a dusky shark fleet communication and relocation protocol. The protocol would require vessels to report the location of dusky shark interactions over the radio to other pelagic longline, bottom longline, or shark gillnet vessels in the area and that subsequent fishing sets on that fishing trip could be no closer than 1 nautical mile (nm) from where the encounter took place.Identification of All Relevant Federal Rules Which May Duplicate, Overlap, or Conflict with the Proposed Rule

    The proposed rule would not conflict with any relevant regulations, Federal or otherwise. Description of Any Significant Alternatives to the Proposed Rule That Accomplish the Stated Objectives of the Applicable Statutes and That Minimize Any Significant Economic Impact of the Proposed Rule on Small Entities

    The RFA (5 U.S.C. 603 (c) (1)-(4)) lists four general categories of “significant” alternatives that would assist an agency in the development of significant alternatives. These categories of alternatives are:

    1. Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities;

    2. Clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities;

    3. Use of performance rather than design standards; and,

    4. Exemptions from coverage of the rule for small entities.

    In order to meet the objectives of this proposed rule, consistent with all legal requirements, NMFS cannot exempt small entities or change the reporting requirements only for small entities because all the entities affected are considered small entities. Thus, there are no alternatives discussed that fall under the first and fourth categories described above. Under the third category, “use of performance rather than design standards,” NMFS considers Alternative B5, which would provide additional training for pelagic longline, bottom longline, and shark gillnet fishermen, to be a performance standard rather than a design standard. Alternative B5's training requirement will apply to all commercial vessels and take place in conjunction with other currently required training workshops. As described below, NMFS analyzed several different alternatives in this proposed rulemaking and provides the rationale for identifying the preferred alternative to achieve the desired objective.

    In this rulemaking, NMFS considers two different categories of alternatives. The first category, recreational alternatives, covers seven main alternatives that address various strategies of reducing dusky shark mortality in the recreational fishery. The second category of alternatives, commercial measures, considers eight main alternatives that address various strategies of reducing dusky shark mortality in the commercial fishery.

    The potential impacts these alternatives may have on small entities have been analyzed and are discussed in the following sections. The preferred alternatives include: Alternative A2, Alternative A6a, Alternative B3, Alternative B5, Alternative B6, and Alternative B9. The economic impacts that would occur under these preferred alternatives were compared with the other alternatives to determine if economic impacts to small entities could be minimized while still accomplishing the stated objectives of this rule.

    Recreational Alternatives Alternative A1

    Alternative A1, the no action alternative, would not implement any management measures in the recreational shark fishery to decrease mortality of dusky sharks, likely resulting in direct, short- and long-term neutral economic impacts. Since there would be no changes to the fishing requirements, there would be no economic impacts on small entities. If more restrictive measures are required in the long-term under MSA or other statutes such as the Endangered Species Act, moderate adverse economic impacts may occur. NMFS does not prefer this alternative at this time, given that the purpose of this action is to address overfishing and rebuilding.

    Alternative A2

    Under Alternative A2, a preferred alternative, HMS Angling and Charter/Headboat permit holders would be required to obtain a shark endorsement, which requires completion of an online shark identification and fishing regulation training course and quiz in order to fish for, retain, possess, or land sharks. Obtaining the shark endorsement would be included in the online HMS permit application and renewal processes and would require the applicant to complete a training course focusing on shark species identification, fishing regulations, and safe handling. This alternative would likely result in no economic impacts since there would be no additional cost to the applicant and only a small additional investment in time. Obtaining the shark endorsement would be a part of the normal HMS permit application or renewal. The applicant would simply need to indicate the desire to obtain the shark endorsement, after which he or she would be directed to an online training course and quiz. The goal of the training course is to help prevent anglers from landing prohibited or undersized sharks, and thus, help rebuild stocks. Furthermore, the list of shark endorsement holders would allow for more targeted surveys and outreach, likely increasing the reliability of recreational shark catch estimates. This preferred alternative helps achieve the objectives of this proposed rule while minimizing any significant economic impacts on small entities.

    Alternative A3

    Alternative A3 would require participants in the recreational shark fishery (Angling and Charter/Headboat permit holders) to carry an approved shark identification placard on board the vessel when fishing for sharks. This alternative would likely result in short- and long-term minor economic impacts. The cost of obtaining a placard, which would be provided by NMFS, whether by obtaining a pre-printed one or self-printing, would be modest. To comply with the requirement of this alternative, the angler would need to keep the placard on board the vessel when fishing for sharks and, since carrying other documents such as permits and boat registration is already required, this is unlikely to be a large inconvenience. This alternative would have slightly more economic impacts than Alternative A2 on small entities and would likely be less effective than the training course in Alternative A2.

    Alternative A4

    Under Alternative A4, NMFS would extend the existing prohibition on the retention of certain ridgeback sharks (bignose, Caribbean reef, dusky, Galapagos, night, sandbar, and silky sharks) to include the rest of the ridgeback sharks, namely oceanic whitetip, tiger sharks, and smoothhound sharks, which currently may be retained by recreational shark fishermen (HMS Angling and Charter/Headboat permit holders) under certain circumstances. This alternative would simplify compliance with the ridgeback prohibition, which includes dusky sharks, for the majority of fishermen targeting sharks. Dusky shark mortality in the recreational fishery is in part due to misidentification of dusky sharks (which are prohibited) as one the retainable species. This alternative, however, could also potentially have adverse economic impacts for a small subset of fishermen that target oceanic whitetip, tiger, and smoothhound sharks. These adverse impacts would be quite small, however, for oceanic whitetip and tiger sharks because few fishermen recreationally fish for these species. Based on MRIP data, however, this alternative could have considerable impacts on fishermen targeting sharks in the smoothhound shark complex because smoothhound sharks are commonly caught by recreational fishermen. Recreational fishermen with only state-issued permits would still be able to retain smoothhound sharks (those that hold an HMS permit must abide by Federal regulations, even in state waters). Alternative A4 would likely result in both direct short- and long-term, minor adverse economic impacts on HMS Charter/Headboat operators if prohibiting landing of additional shark species reduces demand for fishing charters. While this alternative may help reduce dusky mortality, the other proposed measures will address overfishing and rebuilding without the greater economic impacts associated with Alternative A4.

    Alternative A5

    Under Alternative A5, the minimum recreational size limit for authorized shark species, except for Atlantic sharpnose, bonnethead, and hammerhead (great, scalloped, and smooth) sharks, would increase from 54 to 89 inches fork length, which is the approximate length at maturity for dusky sharks. Under this alternative, increasing the recreational size limit would likely result in both direct short- and long-term, moderate adverse economic impacts for recreational fishermen, charter/headboat operators, and tournament operators. Because many shark species have a maximum size below an 89 inch size limit, there could be reduced incentive to fish recreationally for sharks due to the decreased potential to legally land these fish. Increasing the minimum size for retention would also impact the way that tournaments and charter vessels operate. While the impacts of an 89 inch fork length minimum size on tournaments awarding points for pelagic sharks may be lessened because these tournament participants target larger sharks, such as shortfin mako, blue, and thresher, that grow to larger than 89 inches fork length, this may not be the case for tournaments targeting smaller sharks. Tournaments that target smaller sharks, especially those that target shark species that do not reach sizes exceeding 89 inches fork length such as blacktip sharks, may be heavily impacted by this alternative. Reduced participation in such tournaments could potentially decrease the amount of monetary prizes offered to winners. Thus, implementation of this management measure could significantly alter the way some tournaments and charter vessels operate, or reduce both opportunities to fish for sharks and thus drastically reduce general interest and demand for recreational shark fishing, which could create adverse economic impacts. While this alternative may result in minor beneficial ecological impacts for dusky sharks, for the aforementioned reasons, NMFS does not prefer this alternative at this time.

    Alternative A6a

    Sub-alternative A6a is a preferred alternative and would require all persons on board vessels with Atlantic HMS permits participating in fishing tournaments that bestow points, prizes, or awards for sharks to use circle hooks when fishing for or retaining sharks, and require the use of circle hooks by all HMS recreational permit holders when fishing for or retaining sharks outside of a tournament. Any sharks caught on non-circle hooks would have to be released. It would be presumed that an operator is recreationally fishing for sharks if it is fishing with natural bait and using wire or heavy (200 pound test or greater) monofilament or fluorocarbon leader. Relative to the total cost of gear and tackle for a typical fishing trip, the cost associated with switching from J-hooks to circle hooks is negligible. Thus, the immediate cost in switching hook type is likely minimal. However, there is conflicting indication that the use of circle hooks may reduce or increase catch per unit effort (CPUE) resulting in lower catch of target species. In the event that CPUE is reduced, some recreational fishermen may choose not to fish for sharks or to enter tournaments that offer awards for sharks. These missed fishing opportunities could result in minor adverse economic impacts in the short- and long-term. However, since the economic impacts are minor and circle hooks would likely reduce fishing mortality for dusky sharks, NMFS prefers this alternative at this time.

    Alternative A6b

    Sub-Alternative Ab6 is similar to A6a, but instead of requiring circle hooks when fishing for sharks defined by deploying natural bait while using a wire or heavy (200 pound test or greater) monofilament or fluorocarbon leader, it instead requires circle hooks when fishing for sharks defined by deploying a 5/0 or greater size hook to fish with natural bait outside of a fishing tournament. This use of the hook size standard to determine if the trip could be targeting sharks may result in more recreational trips requiring circle hooks than under alterative A6a, but many of those trips might actually not be targeting sharks, but instead other large pelagic fish. The use of a heavy leader is probably more correlated with angling activity that is targeting sharks.

    Alternative A6c

    Sub-Alternative A6c is similar to A6a and A6b, but restricted to requiring the use of circle hooks by all HMS permit holders participating in fishing tournaments that bestow points, prizes, or awards for sharks. This alternative impacts a smaller universe of recreational fishermen, so the adverse impacts are smaller. However, given the limited scope of this requirement, the benefits to reducing dusky shark mortality via the use of circle hooks are also more limited.

    Alternative A7

    Alternative A7 would prohibit any HMS permit holders from retaining any shark species in the recreational fishery. Recreational fishermen may still fish for and target authorized shark species for catch and release. The large number of fishermen who already practice catch and release and the catch and release shark fishing tournaments currently operating would not be impacted. As this alternative would help eliminate accidental landings of already-prohibited dusky sharks, it would have minor beneficial ecological impacts. However, prohibiting retention of sharks could have major impacts on fishing behaviors and activity of other recreational shark fishermen and reduce their demand for charter/headboat trips. Only allowing catch and release of authorized sharks in the recreational fishery could impact some fishermen that retain sharks recreationally and tournaments that award points for landing sharks. Thus, prohibiting retention of Atlantic sharks in the recreational shark fisheries could drastically alter the nature of recreational shark fishing and reduce incentives to fish for sharks. Additionally, the reduced incentive to fish for sharks could negatively impact profits for the HMS Charter/Headboat industry. Because there could be major impacts to the recreational shark fisheries from this management measure, Alternative A7 would likely have direct short- and long-term, moderate adverse economic impacts on small business entities.

    Commercial Alternatives Alternative B1

    Under Alternative B1, the no action alternative, NMFS would not implement any measures to reduce dusky shark mortality in the commercial shark or HMS fisheries. Since no management measures would be implemented under this alternative, NMFS would expect fishing practices to remain the same and economic impacts to be neutral in the short-term. Dusky sharks are a prohibited species and fishermen are not allowed to harvest this species. Thus, there would not be any economic impacts on the fishery in the short-term. If more restrictive measures are required in the long-term under MSA or other statutes such as the Endangered Species Act, moderate adverse economic impacts may occur. NMFS does not prefer this alternative at this time, given that the purpose of this action is to address overfishing and rebuilding.

    Alternative B2

    Under Alternative B2, HMS commercial fishermen would be limited to 750 hooks per pelagic longline set with no more than 800 assembled gangions onboard the vessel at any time. Based on average number of hooks per pelagic longline set data, the hook restriction in this alternative could have neutral economic impacts on fishermen targeting bigeye tuna, mixed tuna species, and mixed HMS species, because the average number of hooks used on pelagic longline sets targeting these species is slightly above or below the limit considered in this alternative. This alternative would likely have adverse economic impacts on pelagic longline fishermen who target dolphin fish, because these fishermen on average use 1,066 hooks per set. If NMFS implemented this alternative, fishermen targeting dolphin fish with pelagic longline gear would have to reduce their number of hooks by approximately 30 percent per set, which may result in a similar percent reduction in set revenue or could result in increased operating costs if fishermen decide to offset the limited number of hooks with more fishing sets. While this alternative would have minor beneficial ecological impacts, overall, Alternative B2 would be expected to have short- and long-term minor adverse economic impacts on the pelagic longline fishery.

    Alternative B3

    Under Alternative B3, a preferred alternative, HMS commercial fishermen must release all sharks that are not being boarded or retained by using a dehooker, or by cutting the gangion no more than three feet from the hook. This alternative would have neutral to adverse economic impacts on commercial shark fishermen using pelagic longline gear. Currently, fishermen are required to use a dehooking device if a protected species is caught. This alternative would require this procedure to be used on all sharks that would not be retained, or fishermen would have to cut the gangion to release the shark. Currently, it is common practice in the pelagic longline fishery to release sharks that are not going to be retained (especially larger sharks) by cutting the gangion, but they usually do not cut the gangion so only 3 feet remain, so there might be a slight learning curve. Using a dehooker to release sharks in the pelagic longline fishery is a less common practice; therefore, there may be more of a learning curve that would make using this technique more time consuming and would make fishing operations temporarily less efficient while fishermen become used to this technique. NMFS expects that these inefficiencies would be minimal and that fishermen would become adept in using a dehooker to release sharks over time given they are all practiced at using a dehooker to release protected species. Thus, Alternative B3 would be expected to have short- and long-term neutral economic impacts on the pelagic longline fishery.

    Alternative B4

    Under Alternative B4, NMFS considered various dusky shark hotspot closures for vessels fishing with pelagic longline gear. The hotspot closures considered are the same areas that were analyzed in Draft Amendment 5 and the A5b Predraft. These hotspot closure alternatives are located where increased levels of pelagic longline interactions with dusky sharks had been identified based on HMS Logbook data. During the months that hotspot closures are effective, Atlantic shark commercial permit holders (directed or incidental) would not be able to fish with pelagic longline gear in these areas. While these closures would result in minor ecological benefits, NMFS does not prefer them at this time because the preferred alternatives would address overfishing and rebuilding without the adverse social and economic impacts associated with these closures.

    Alternative B4a—Charleston Bump Hotspot May

    This alternative would define a rectangular area in a portion of the existing Charleston Bump time/area closure area, and prohibit the use of pelagic longline gear by all vessels during the month of May in that area. This alternative is expected to have moderate short and long-term direct adverse economic impacts on 46 vessels that have historically fished in this Charleston Bump area during the month of May. This closure would result in the loss of approximately $15,250 in gross revenues per year per vessel assuming no redistribution of effort outside of the closed area.

    However, it is likely that some of the vessels that would be impacted by this hotspot closure would redistribute their effort to other fishing areas. Based on natural breaks in the percentage of sets vessels made inside and outside of this alternative's hotspot closure area, NMFS estimated that if a vessel historically made less than 40 percent of its sets in the hotspot closure area, it would likely redistribute all of its effort. If a vessel made more than 40 percent but less than 75 percent of its sets in the hotspot closure area, it would likely redistribute 50 percent of its effort impacted by the hotspot closure area to other areas. Finally, if a vessel made more than 75 percent of its sets solely within the hotspot closure area, NMFS assumed the vessel would not likely shift its effort to other areas. Based on these individually calculated redistribution rates, the percentage of fishing in other areas during the gear restriction time period, the percentage of fishing in other areas during the hotspot closure time period, and the catch per unit effort for each vessel in each statistical area, NMFS estimated the potential landings associated with redistributed effort associated with fishing sets displaced by the hotspot closure area. The net loss in fishing revenues as a result of the Charleston Bump Hotspot May closure after considering likely redistribution of effort is estimated to be $8,300 per vessel per year. Alternative B4a would result in moderate short- and long-term adverse economic impacts as a result of restricting pelagic longline vessels from fishing in the Charleston Bump Hotspot May area, thus causing decreased revenues and increased costs associated with fishing in potentially more distant waters if vessel operators redistribute their effort.

    Alternative B4b—Hatteras Shelf Hotspot May

    This alternative would prohibit the use of pelagic longline gear in the vicinity of the “Hatteras Shelf” area of the Cape Hatteras Special Research Area during the month of May where elevated levels of dusky shark interactions have been reported. This alternative is expected to have moderate short and long-term direct adverse economic impacts on 42 vessels that have historically fished in this Hatteras Shelf Hotspot area during the month of May. The average annual revenue per vessel from 2008 through 2014 from all fishing sets made in this hotspot closure area has been approximately $9,980 during the month of May, assuming that fishing effort does not move to other areas. However, it is likely that some of the vessels that would be impacted by this hotspot closure would redistribute their effort to other fishing areas. The net impact of the Hatteras Shelf Hotspot May closure on fishing revenues after considering likely redistribution of effort is estimated to be $5,990 per vessel per year. Alternative B4b would result in moderate adverse economic impacts as a result of restricting pelagic longline vessels from fishing in the Hatteras Shelf Hotspot May area, thus causing decreased revenues and increased costs associated with fishing in potentially more distant waters if vessel operators redistribute their effort.

    Alternative B4c—Hatteras Shelf Hotspot June

    This alternative would prohibit the use of pelagic longline gear in the vicinity of the “Hatteras Shelf” area of the Cape Hatteras Special Research Area during the month of June where elevated levels of dusky shark interactions have been reported. This alternative is expected to have moderate short and long-term direct adverse economic impacts on 37 vessels that have historically fished in this Hatteras Shelf Hotspot area during the month of June. The average annual revenue from 2008 through 2014 from all fishing sets made in this hotspot closure area has been approximately $7,640 per vessel during the month of June, assuming that fishing effort does not move to other areas. However, it is likely that some of the vessels that would be impacted by this hotspot closure would redistribute their effort to other fishing areas. The net impact of the Hatteras Shelf Hotspot June closure on fishing revenues after considering likely redistribution of effort is estimated to be $4,010 per vessel per year. Alternative B4c would result in moderate adverse economic impacts as a result of restricting pelagic longline vessels from fishing in the Hatteras Shelf Hotspot June area, thus causing decreased revenues and increased costs associated with fishing in potentially more distant waters if vessel operators redistribute their effort.

    Alternative B4d—Hatteras Shelf Hotspot November

    This alternative would prohibit the use of pelagic longline gear in the vicinity of the “Hatteras Shelf” area of the Cape Hatteras Special Research Area during the month of November where elevated levels of dusky shark interactions have been reported. This alternative is expected to have minor short and long-term direct adverse economic impacts on 23 vessels that have historically fished in this Hatteras Shelf Hotspot area during the month of November. The average annual revenue from 2008 through 2014 from all fishing sets made in this hotspot closure area has been approximately $5,230 per vessel during the month of November, assuming that fishing effort does not move to other areas. However, it is likely that some of the vessels that would be impacted by this hotspot closure would redistribute their effort to other fishing areas. The net impact of the Hatteras Shelf Hotspot November closure on fishing revenues after considering likely redistribution of effort is estimated to be $3,540 per vessel per year. Alternative B4d would result in minor adverse economic impacts as a result of restricting pelagic longline vessels from fishing in the Hatteras Shelf Hotspot November area, thus causing decreased revenues and increased costs associated with fishing in potentially more distant waters if vessel operators redistribute their effort.

    Alternative B4e—Canyons Hotspot October

    This alternative would prohibit the use of pelagic longline gear by all U.S. flagged-vessels permitted to fish for HMS in the three distinct closures in the vicinity of the Mid-Atlantic Canyons during the month of October where elevated levels of dusky shark interactions have been reported. This alternative is expected to have moderate short and long-term direct adverse economic impacts on 64 vessels that have historically fished in this Canyons Hotspot October area. The average annual revenue from 2008 through 2014 from all fishing sets made in this hotspot closure area has been approximately $9,950 per vessel during the month of October, assuming that fishing effort does not move to other areas. However, it is likely that some of the vessels that would be impacted by this hotspot closure would redistribute their effort to other fishing areas. The net impact of the Canyons Hotspot October closure on fishing revenues after considering likely redistribution of effort is estimated to be $3,720 per vessel per year. Alternative B4e would result in moderate adverse economic impacts as a result of restricting pelagic longline vessels from fishing in the Canyons Hotspot October area, thus causing decreased revenues and increased costs associated with fishing in potentially more distant waters if vessel operators redistribute their effort.

    Alternative B4f—Southern Georges Banks Hotspot July

    This alternative would prohibit the use of pelagic longline gear by all U.S. flagged-vessels permitted to fish for HMS in July in an area adjacent to the existing Northeastern U.S. closure which is currently effective for the month of June, where elevated levels of dusky shark interactions have been reported. This alternative is expected to have moderate short- and long-term direct adverse economic impacts on 35 vessels that have historically fished in this Southern Georges Banks Hotspot area during the month of July. The average annual revenue from 2008 through 2014 from all fishing sets made in this hotspot closure area has been approximately $14,230 per vessel during the month of July, assuming that fishing effort does not move to other areas. However, it is likely that some of the vessels that would be impacted by this hotspot closure would redistribute their effort to other fishing areas. The net impact of the Southern Georges Banks Hotspot July closure on fishing revenues after considering likely redistribution of effort is estimated to be $8,290 per vessel per year. Alternative B4f would result in moderate adverse economic impacts as a result of restricting longline vessels from fishing in the Southern Georges Banks Hotspot July area, thus causing decreased revenues and increased costs associated with fishing in potentially more distant waters if vessel operators redistribute their effort.

    Alternative B4g—Southern Georges Banks Hotspot August

    This alternative would prohibit the use of pelagic longline gear by all U.S. flagged-vessels permitted to fish for HMS in August in an area adjacent to the existing Northeastern U.S. closure, which is currently effective for the month of June, where elevated levels of dusky shark interactions have been reported. This alternative is expected to have moderate short and long-term direct adverse economic impacts on 35 vessels that have historically fished in this Southern Georges Banks Hotspot area during the month of August. The average annual revenue from 2008 through 2014 from all fishing sets made in this hotspot closure area has been approximately $12,260 per vessel during the month of August, assuming that fishing effort does not move to other areas. However, it is likely that some of the vessels that would be impacted by this hotspot closure would redistribute their effort to other fishing areas. The net impact of the Southern Georges Banks Hotspot August closure on fishing revenues after considering likely redistribution of effort is estimated to be $5,990 per vessel per year. Alternative B4g would result in moderate adverse economic impacts as a result of restricting pelagic longline vessels from fishing in the Southern Georges Banks Hotspot August area, thus causing decreased revenues and increased costs associated with fishing in potentially more distant waters if vessel operators redistribute their effort.

    Alternative B4h—Charleston Bump Hotspot November

    This alternative would prohibit the use of pelagic longline gear by all U.S. flagged-vessels permitted to fish for HMS in a portion of the existing Charleston Bump time/area closure during the month of November where elevated levels of dusky shark interactions have been reported. This alternative is expected to have minor short and long-term direct adverse economic impacts on 32 vessels that have historically fished in this Charleston Bump Hotspot area during the month of November. The average annual revenue from 2008 through 2014 from all fishing sets made in this hotspot closure area has been approximately $7,030 per vessel during the month of November, assuming that fishing effort does not move to other areas. However, it is likely that some of the vessels that would be impacted by this hotspot closure would redistribute their effort to other fishing areas. The net impact of the Charleston Bump Hotspot November closure on fishing revenues after considering likely redistribution of effort is estimated to be $2,720 per vessel per year. Alternative B4h would result in minor adverse social and economic impacts as a result of restricting pelagic longline vessels from fishing in the Charleston Bump Hotspot November area, thus causing decreased revenues and increased costs associated with fishing in potentially more distant waters if vessel operators redistribute their effort.

    Alternative B4i—Conditional Access to Hotspot Closures

    This alternative would allow PLL vessels that have demonstrated an ability to avoid dusky sharks and comply with dusky shark regulations to fish within any dusky hotspot closure adopted. This approach would address the fact that, according to HMS logbook data, relatively few vessels have consistently accounted for the majority of the dusky shark interactions and also address requests from PLL participants to increase individual accountability within the fishery. Depending on the metrics selected and fishery participant behavior, this alternative could have adverse socioeconomic effects on certain vessels that are both poor avoiders of dusky sharks and are non-compliant with the regulations. This alternative would require an annual determination of which vessels would qualify for conditional access based on dusky shark interactions. NMFS would analyzed the socioeconomic impact by using similar fishing effort redistribution proposed in Draft Amendment 7 and described in Alternative B5. This alternative would have neutral to beneficial effects for vessels that are still authorized to fish in a hotspot closure(s), and would reduce adverse socioeconomic effects of a closure(s). As explained above, NMFS is not preferring any hotspot closure alternative and thus is not preferring this alternative, which would work in conjunction with a closure.

    Alternative B4j—Dusky Shark Bycatch Caps

    This alternative would implement bycatch caps on dusky shark interactions over a three-year period in hotspot areas. Under this alternative, NMFS would allow pelagic longline vessels limited access to high dusky shark interaction areas with an observer onboard while limiting the number of dusky shark interactions that could occur in these areas. Once the dusky shark bycatch cap for an area is reached, that area would close until the end of the three-year bycatch cap period. This alternative could lead to adverse economic impacts by reducing annual revenue from fishing in the various hot spot areas depending on the number of hotspots where bycatch cap limits are reached, the timing of those potential closures during the year, and the amount of effort redistribution that occurs after the closures. In addition to direct impacts to vessels owners, operators, and crew members, this alternative would have moderate, adverse indirect impacts in the short and long-term on fish dealers, processors, bait/gear suppliers, and other shore-based businesses impacted by reduced fishing opportunities for pelagic longline vessel owners that would have fished in the hotspot area. As explained above, NMFS is not preferring any hotspot closure alternative and thus is not preferring this alternative, which would work in conjunction with a closure.

    Alternative B5

    Alternative B5, a preferred alternative, would provide additional training to pelagic longline, bottom longline, and shark gillnet vessel owners and operators as a new part of all currently required Safe Handling and Release Workshops. The training course would provide information regarding shark identification and regulations, as well as best practices to avoid interacting with dusky sharks and how to minimize mortality of dusky sharks caught as bycatch. This training course requirement provides targeted outreach to those who continue to interact with dusky sharks, which should decrease interactions with dusky sharks. This alternative would have minor adverse economic impacts since the fishermen would be required to attend a workshop, incur some travel costs, and would not be fishing while taking attending the workshop. Given the minor economic impacts and this alternative's potential to decrease dusky interactions and mortality, NMFS prefers this alternative.

    Alternative B6

    The economic impacts associated with Alternative B6, a preferred alternative, which would increase dusky shark outreach and awareness through development of additional commercial fishery outreach materials and establish a communication and fishing set relocation protocol for HMS commercial fishermen following interactions with dusky sharks and increase outreach, are anticipated to be neutral. These requirements would not cause a substantial change to current fishing operations, but have the potential to help fishermen become more adept in avoiding dusky sharks. If fishermen become better at avoiding dusky sharks, there is the possibility that target catch could increase. On the other hand, the requirement to move the subsequent fishing set one nautical mile from where a previous dusky shark interaction occurred could move fishermen away from areas where they would prefer to fish and it could increase fuel usage and fuel costs. Given the low economic impacts of this alternative and its potential to decrease dusky shark interactions, NMFS prefers this alternative.

    Alternative B7

    NMFS would seek, through collaboration with the affected states and the ASMFC, to extend the end date of the existing state shark closure from July 15 to July 31. Currently, the states of Virginia, Maryland, Delaware, and New Jersey have a state-water commercial shark closure from May 15 to July 15. Extending the closure period in state waters would result in minor beneficial ecological impacts. In 2014, 621 lb dw of aggregated LCS and 669 lb dw of hammerhead sharks were landed by commercial fishermen in Virginia, Maryland, and New Jersey from July 15 to July 31. Based on 2014 ex-vessel prices, the annual gross revenues loss for aggregated LCS and hammerhead shark meat to the regional fleet in revenues due to an extended closure date would be $847, while the shark fins would be $207. Thus the total loss annual gross revenue for aggregated LCS and hammerhead sharks would be $1,054. Extending this closure by 16 days could cause a reduction of commercial fishing opportunity, likely resulting in minor adverse economic impacts due to reduced opportunities to harvest aggregated LCS and hammerhead sharks. In the long-term, this reduction would be neutral since fishermen would be able to adapt to the new opening date.

    Alternative B8

    Under Alternative B8, NMFS would remove pelagic longline gear as an authorized gear for Atlantic HMS. All commercial fishing with pelagic longline gear for HMS in the Atlantic, Gulf of Mexico, and Caribbean would be prohibited, which would have beneficial ecological impacts. However, this would greatly reduce fishing opportunities for pelagic longline fishing vessel owners. Prohibiting the use of pelagic longline fishing gear would result in direct and indirect, major adverse economic impacts in the short and long-term for pelagic longline vessel owners, operators, and crew.

    Between 2008 and 2014, 168 different vessels reported using pelagic longline fishing gear in Atlantic HMS Logbooks. Average annual revenues were estimated to be approximately $34,322,983 per year based on HMS logbook records, bluefin tuna dealer reports, and the eDealer database. In 2014, there were 110 active pelagic longline vessels which produced approximately $33,293,118 in revenues. The 2014 landings value is in line with the 2008 to 2014 average. Therefore, NMFS expects future revenues forgone revenue on a per vessel basis to be approximately $309,000 per year based on 110 vessels generating an estimated $34 million in revenues per year. This displacement of fishery revenues would likely cause business closures for a majority of these pelagic longline vessel owners. Given the magnitude of the economic impact of this alternative, it is not a preferred alternative.

    Alternative B9

    Under Alternative B9, a preferred alternative, NMFS would require the use of circle hooks by all HMS directed shark permit holders in the bottom longline fishery. This requirement would likely reduce the mortality associated with dusky shark bycatch in the bottom longline fishery. There is negligible cost associated with switch from J-hooks to circle hooks. However, it is possible that circle hooks may reduce catch per unit effort (CPUE) resulting in lower catch of target species. To the extent that CPUE is reduced, some commercial fishermen using BLL gear may experience reduced landings and associated revenue with the use of circle hooks. This alternative would require the 224 vessels that hold a shark directed limited access permit as of 2015 to use circle hooks. However, 104 of the 224 vessels have an Atlantic tunas longline permit, which requires fishermen to use circle hooks with pelagic longline gear. Thus, those vessels would already possess and use circle hooks. The remaining 120 permit holders would be required to use circle hooks when using bottom longline gear. Given the low switching costs from J-hooks to circle hooks and the potential to reduce dusky shark mortality, NMFS prefers this alternative.

    Alternative B10

    Under this alternative, NMFS would annually allocate individual dusky shark bycatch quota (IDQ) to each individual shark directed or incidental limited access permit holder in the HMS pelagic and bottom longline fisheries for assignment to permitted vessels. These allocations would be transferable between permit holders. When each vessel's IDQ is reached, the vessel would no longer be authorized to fish for HMS for the remainder of the year. The concept of this alternative is similar to the Individual Bluefin Tuna Quota (IBQ) Program implemented in Amendment 7 to the 2006 Consolidated HMS FMP (79 FR 71510; December 2, 2014), which established individual quotas for bluefin tuna bycatch in the pelagic longline fishery and authorized retention and sale of such bycatch. Under this alternative, however, NMFS would continue to prohibit retention and sale of dusky sharks. The goal of individual quotas generally is to provide strong individual incentives to reduce interactions while providing flexibility for vessels to continue to operate in the fishery; however, several unique issues associated with dusky sharks would make these goals difficult to achieve.

    In order to achieve the mortality reductions based upon the 2016 SEDAR 21 dusky shark assessment update, the number of dusky shark interactions may need to be substantially reduced. NMFS expects the allocations to each vessel may be extremely low and highly inaccurate/uncertain. As stated above, there is significant uncertainty in estimating dusky shark catches and calculating the appropriate level of catch for this alternative to be feasible. It is not clear that an IDQ system without an appropriate scientific basis would actually reduce interactions with dusky sharks. To the extent that any reduction actually occurred, some vessels would be constrained by the amount of individual quota they are allocated and this could reduce their annual revenue. If a pelagic longline vessel interacts with dusky sharks early in the year and uses their full IDQ allocation, they may be unable to continue fishing with pelagic longline or bottom longline gear for the rest of the year if they are unable to lease quota from other IDQ holders. This would result in reduced revenues and potential cash flow issues for these small businesses.

    If vessel owners are only allocated a very low amount of IDQs, it is very unlikely that an active trading market for IDQs will emerge. The initial allocations could be insufficient for many vessels to maintain their current levels of fishing activity and they may not be able to find IDQs to lease or have insufficient capital to lease a sufficient amount of IDQs. Some vessel owners may view the risk of exceeding their IDQ allocations and the associated costs of acquiring additional quota to outweigh the potential profit from fishing, so they may opt to not continue participating in the fishery. The annual transaction costs associated with matching lessor and lessees, the costs associated with drafting agreements, and the uncertainty vessel owners would face regarding quota availability would reduce some of the economic benefits associated with leasing quota and fishing. There would also be increased costs associated with bottom longline vessels obtaining and installing EM and VMS units. Some bottom longline vessel owners might have to consider obtaining new vessels if their current vessels cannot be equipped with EM and VMS. There would be increased costs associated with VMS reporting of dusky interactions. Some fishermen would also need to ship EM hard drives after each trip and they may need to consider acquiring extra hard drives to avoid not having one available when they want to go on a subsequent trip.

    NMFS is not preferring this alternative, as it does not further the objectives of this action. Given the challenges in properly identifying dusky sharks, every shark would need to be brought on board the vessel and ensure an accurate picture of identifying features was taken by the EM cameras. Such handling would likely increase dusky shark and other shark species mortality, and this action is supposed to reduce mortality. In addition, this alternative is also unlikely to minimize the economic impact of this rule as compared to the preferred alternatives given the potential for reduced fishing revenues, monitoring equipment costs, and transaction costs.

    List of Subjects in 50 CFR Part 635

    Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties.

    Dated: October 12, 2016. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For reasons set out in the preamble, 50 CFR part 635 is proposed to be amended as follows:

    PART 635—ATLANTIC HIGHLY MIGRATORY SPECIES 1. The authority citation for part 635 continues to read as follows: Authority:

    16 U.S.C. 971 et seq.; 16 U.S.C. 1801 et seq.

    2. In § 635.2: a. Remove the definition of “Protected species safe handling, release, and identification workshop certificate”; and b. Add new definitions for “Safe handling, release, and identification workshop certificate” and “Shark endorsement” in alphabetical order to read as follows:
    § 635.2 Definitions.

    Safe handling, release, and identification workshop certificate means the document issued by NMFS, or its designee, indicating that the person named on the certificate has successfully completed the Atlantic HMS safe handling, release, and identification workshop.

    Shark endorsement means an authorization added to an HMS Angling, HMS Charter/Headboat, Atlantic Tunas General, or Swordfish General Commercial permit that allows for the retention of authorized Atlantic sharks consistent with all other applicable regulations in this part.

    3. In § 635.4, revise paragraphs (b)(1), (c)(1), and (c)(2), and add paragraphs (c)(5) and (j)(4) to read as follows:
    § 635.4 Permits and fees.

    (b) * * *

    (1) The owner of a charter boat or headboat used to fish for, retain, possess, or land any Atlantic HMS must obtain an HMS Charter/Headboat permit. In order to fish for, retain, possess, or land Atlantic sharks, the owner must have a valid shark endorsement issued by NMFS, and persons on board must use circle hooks as specified at § 635.21(f) and (k). A vessel issued an HMS Charter/Headboat permit for a fishing year shall not be issued an HMS Angling permit, a Swordfish General Commercial permit, or an Atlantic Tunas permit in any category for that same fishing year, regardless of a change in the vessel's ownership.

    (c) * * *

    (1) The owner of any vessel used to fish recreationally for Atlantic HMS or on which Atlantic HMS are retained or possessed recreationally, must obtain an HMS Angling permit, except as provided in § 635.4(c)(2). In order to fish for, retain, possess, or land Atlantic sharks, the owner must have a valid shark endorsement issued by NMFS, and persons on board must use circle hooks as specified at § 635.21(f) and (k). Atlantic HMS caught, retained, possessed, or landed by persons on board vessels with an HMS Angling permit may not be sold or transferred to any person for a commercial purpose. A vessel issued an HMS Angling permit for a fishing year shall not be issued an HMS Charter/Headboat permit, a Swordfish General Commercial permit, or an Atlantic Tunas permit in any category for that same fishing year, regardless of a change in the vessel's ownership.

    (2) A vessel with a valid Atlantic Tunas General category permit issued under paragraph (d) of this section or with a valid Swordfish General Commercial permit issued under paragraph (f) of this section may fish in a recreational HMS fishing tournament if the vessel has registered for, paid an entry fee to, and is fishing under the rules of a tournament that has registered with NMFS' HMS Management Division as required under § 635.5(d). When a vessel issued a valid Atlantic Tunas General category permit or a valid Swordfish General Commercial permit is fishing in such a tournament, such vessel must comply with HMS Angling category regulations, except as provided in paragraphs (c)(3) and (c)(4) and in addition to paragraph (c)(5) of this section.

    (5) In order to fish for, retain, possess, or land sharks, the owner of a vessel fishing in a registered recreational HMS fishing tournament and issued either an Atlantic Tunas General category or Swordfish General Commercial permit must have a shark endorsement, and persons on board must use circle hooks as specified at § 635.21(f) and (k).

    (j) * * *

    (4) In order to obtain a shark endorsement to fish for, retain, or land sharks, a vessel owner with a vessel fishing in a registered recreational HMS fishing tournament and issued or required to be issued either an Atlantic Tunas General category or Swordfish General Commercial permit or a vessel owner of a vessel issued or required to be issued an HMS Angling or HMS Charter/Headboat permit must take a shark endorsement online quiz. After completion of the quiz, NMFS will issue the vessel owner a new or revised permit with the shark endorsement for the vessel. The vessel owner can take the quiz at any time during the fishing year, but his or her vessel may not leave the dock on a trip during which sharks will be fished for, retained, or landed unless a new or revised permit with a shark endorsement has been issued by NMFS for the vessel. The addition of a shark endorsement to the permit does not constitute a permit category change and does not change the timing considerations for permit category changes specified in paragraph (j)(3) of this section.

    4. In § 635.8, revise paragraphs (a), (c)(2), (c)(3), (c)(5), (c)(6), and (c)(7) as follows:
    § 635.8 Workshops.

    (a) Safe handling release, disentanglement, and identification workshops. (1) Both the owner and operator of a vessel that fishes with longline or gillnet gear must be certified by NMFS, or its designee, as having completed a safe handling, release, and identification workshop before a shark or swordfish limited access vessel permit, pursuant to § 635.4(e) and (f), is renewed. For the purposes of this section, it is a rebuttable presumption that a vessel fishes with longline or gillnet gear if: Longline or gillnet gear is onboard the vessel; logbook reports indicate that longline or gillnet gear was used on at least one trip in the preceding year; or, in the case of a permit transfer to new owners that occurred less than a year ago, logbook reports indicate that longline or gillnet gear was used on at least one trip since the permit transfer.

    (2) NMFS, or its designee, will issue a safe handling, release, and identification workshop certificate to any person who completes a safe handling, release, and identification workshop. If an owner owns multiple vessels, NMFS will issue a certificate for each vessel that the owner owns upon successful completion of one workshop. An owner who is also an operator will be issued multiple certificates, one as the owner of the vessel and one as the operator.

    (3) The owner of a vessel that fishes with longline or gillnet gear, as specified in paragraph (a)(1) of this section, is required to possess on board the vessel a valid safe handling, release, and identification workshop certificate issued to that vessel owner. A copy of a valid safe handling, release, and identification workshop certificate issued to the vessel owner for a vessel that fishes with longline or gillnet gear must be included in the application package to renew or obtain a shark or swordfish limited access permit.

    (4) An operator that fishes with longline or gillnet gear as specified in paragraph (a)(1) of this section must possess on board the vessel a valid safe handling, release, and identification workshop certificate issued to that operator, in addition to a certificate issued to the vessel owner.

    (c) * * *

    (2) If a vessel fishes with longline or gillnet gear as described in paragraph (a) of this section, the vessel owner may not renew a shark or swordfish limited access permit, issued pursuant to § 635.4(e) or (f), without submitting a valid safe handling, release, and identification workshop certificate with the permit renewal application.

    (3) A vessel that fishes with longline or gillnet gear as described in paragraph (a) of this section and that has been, or should be, issued a valid limited access permit pursuant to § 635.4(e) or (f), may not fish unless a valid safe handling, release, and identification workshop certificate has been issued to both the owner and operator of that vessel.

    (5) A vessel owner, operator, shark dealer, proxy for a shark dealer, or participant who is issued either a safe handling, release, and identification workshop certificate or an Atlantic shark identification workshop certificate may not transfer that certificate to another person.

    (6) Vessel owners issued a valid safe handling, release, and identification workshop certificate may request, in the application for permit transfer per § 635.4(l)(2), additional safe handling, release, and identification workshop certificates for additional vessels that they own. Shark dealers may request from NMFS additional Atlantic shark identification workshop certificates for additional places of business authorized to receive sharks that they own as long as they, and not a proxy, were issued the certificate. All certificates must be renewed prior to the date of expiration on the certificate.

    (7) To receive the safe handling, release, and identification workshop certificate or Atlantic shark identification workshop certificate, persons required to attend the workshop must first show a copy of their HMS permit, as well as proof of identification to NMFS or NMFS' designee at the workshop. If a permit holder is a corporation, partnership, association, or any other entity, the individual attending on behalf of the permit holder must show proof that he or she is the permit holder's agent and provide a copy of the HMS permit to NMFS or NMFS' designee at the workshop. For proxies attending on behalf of a shark dealer, the proxy must have documentation from the shark dealer acknowledging that the proxy is attending the workshop on behalf of the Atlantic shark dealer and must show a copy of the Atlantic shark dealer permit to NMFS or NMFS' designee at the workshop.

    5. In § 635.19, revise paragraph (d) to read as follows:
    § 635.19 Authorized gears.

    (d) Sharks. (1) No person may possess a shark without a permit issued under § 635.4.

    (2) No person issued a Federal Atlantic commercial shark permit under § 635.4 may possess a shark taken by any gear other than rod and reel, handline, bandit gear, longline, or gillnet, except that smoothhound sharks may be retained incidentally while fishing with trawl gear subject to the restrictions specified in § 635.24(a)(7).

    (3) No person issued an HMS Commercial Caribbean Small Boat permit may possess a shark taken from the U.S. Caribbean, as defined at § 622.2 of this chapter, by any gear other than with rod and reel, handline or bandit gear.

    (4) Persons on a vessel issued a permit with a shark endorsement under § 635.4 may possess a shark only if the shark was taken by rod and reel or handline, except that persons on a vessel issued both an HMS Charter/Headboat permit (with or without a shark endorsement) and a Federal Atlantic commercial shark permit may possess sharks taken by rod and reel, handline, bandit gear, longline, or gillnet if the vessel is engaged in a non for-hire fishing trip and the commercial shark fishery is open pursuant to § 635.28(b).

    6. In § 635.21: a. Add paragraph (c)(6); b. Revise the introductory text for paragraph (d)(2); c. Add paragraphs (d)(2)(iii) and (d)(4); d. Revise paragraph (f); and e. Add paragraphs (g)(5) and (k).

    The additions and revisions read as follows:

    § 635.21 Gear operation and deployment restrictions.

    (c) * * *

    (6) The owner or operator of a vessel permitted or required to be permitted under this part and that has pelagic longline gear on board must undertake the following shark bycatch mitigation measures:

    (i) Handling and release requirements. Any hooked or entangled sharks that are not being retained must be released using dehookers or line clippers or cutters. If using a line clipper or cutter, the gangion must be cut so that less than three feet (91.4 cm) of line remains attached to the hook.

    (ii) Fleet communication and relocation protocol. The owner or operator of any vessel that catches a dusky shark must broadcast the location of the dusky shark interaction over the radio to other fishing vessels in the surrounding area. Subsequent fishing sets by that vessel on that trip must be at least 1 nmi from the reported location of the dusky shark catch.

    (d) * * *

    (2) The operator of a vessel required to be permitted under this part and that has bottom longline gear on board must undertake the following bycatch mitigation measures:

    (iii) Fleet communication and relocation protocol. The owner or operator of any vessel that catches a dusky shark must broadcast the location of the dusky shark interaction over the radio to other fishing vessels in the surrounding area. Subsequent fishing sets by that vessel on that trip must be at least 1 nmi from the reported location of the dusky shark catch.

    (4) Vessels that have bottom longline gear on board and that have been issued, or are required to have been issued, a directed shark limited access permit under § 635.4(e) must have only circle hooks as defined at § 635.2 on board.

    (f) Rod and reel. (1) Persons who have been issued or are required to be issued a permit under this part and who are participating in a “tournament,” as defined in § 635.2, that bestows points, prizes, or awards for Atlantic billfish must deploy only non-offset circle hooks when using natural bait or natural bait/artificial lure combinations, and may not deploy a J-hook or an offset circle hook in combination with natural bait or a natural bait/artificial lure combination.

    (2) A person on board a vessel that has been issued or is required to be issued a permit with a shark endorsement under this part and who is participating in an HMS registered tournament that bestows points, prizes, or awards for Atlantic sharks must deploy only circle hooks when fishing for, retaining, possessing, or landing sharks. For the purposes of this requirement, an owner or operator is fishing for sharks if they are using natural bait and wire or heavy (200 pound test or greater) monofilament or fluorocarbon leaders.

    (3) A person on board a vessel that has been issued or is required to be issued an HMS Angling permit with a shark endorsement or an HMS Charter/Headboat permit with a shark endorsement must deploy only circle hooks when fishing for, retaining, possessing, or landing sharks. Any shark caught on non-circle hooks must be released. For the purposes of this requirement, an owner or operator is fishing for sharks if they are using natural bait and wire or heavy (200 pound test or greater) monofilament or fluorocarbon leaders.

    (g) * * *

    (5) Fleet communication and relocation protocol. The owner or operator of any vessel issued or required to be issued a Federal Atlantic commercial shark limited access permit that catches a dusky shark must broadcast the location of the dusky shark interaction over the radio to other fishing vessels in the surrounding area. Subsequent fishing sets by that vessel that trip must be at least 1 nmi from the reported location of the dusky shark catch.

    (k) Handline. (1) A person on board a vessel that has been issued or is required to be issued a permit with a shark endorsement under this part and who is participating in an HMS registered tournament that bestows points, prizes, or awards for Atlantic sharks must deploy only circle hooks when fishing for, retaining, possessing, or landing sharks. Any shark caught on non-circle hooks must be released. For the purposes of this sections, an owner or operator is fishing for sharks if they are using natural bait and wire or heavy (200 pound test or greater) monofilament or fluorocarbon leaders.

    (2) A person on board a vessel that has been issued or is required to be issued an HMS Angling permit with a shark endorsement or a person on board a vessel with an HMS Charter/Headboat permit with a shark endorsement must deploy only circle hooks when fishing for, retaining, possessing, or landing sharks. Any shark caught on non-circle hooks must be released. For the purposes of this requirement, an owner or operator is fishing for sharks if they are using natural bait and wire or heavy (200 pound test or greater) monofilament or fluorocarbon leaders.

    7. In § 635.22, revise paragraph (c)(1) to read as follows:
    § 635.22 Recreational retention limits.

    (c) * * *

    (1) The recreational retention limit for sharks applies to any person who fishes in any manner, except to persons aboard a vessel that has been issued a Federal Atlantic commercial shark vessel permit under § 635.4. The retention limit can change depending on the species being caught and the size limit under which they are being caught as specified under § 635.20(e). If a commercial Atlantic shark quota is closed under § 635.28, the recreational retention limit for sharks and no sale provision in paragraph (a) of this section may be applied to persons aboard a vessel issued a Federal Atlantic commercial shark vessel permit under § 635.4, only if that vessel has also been issued an HMS Charter/Headboat permit with a shark endorsement under § 635.4 and is engaged in a for-hire fishing trip. A person on board a vessel that has been issued or is required to be issued a permit with a shark endorsement under § 635.4 must use circle hooks as specified in § 635.21(f) and (k) in order to retain sharks per the retention limits specified in this section.

    8. In § 635.71, revise paragraphs (a)(50) through (52), and add paragraphs (d)(21) through (d)(26) to read as follows:
    § 635.71 Prohibitions.

    (a) * * *

    (50) Fish without being certified for completion of a NMFS safe handling, release, and identification workshop, as required in § 635.8.

    (51) Fish without having a valid safe handling, release, and identification workshop certificate issued to the vessel owner and operator on board the vessel as required in § 635.8.

    (52) Falsify a NMFS safe handling, release, and identification workshop certificate or a NMFS Atlantic shark identification workshop certificate as specified at § 635.8.

    (d) * * *

    (21) Fish for, retain, possess, or land sharks without a shark endorsement when issued an Atlantic HMS Angling permit, HMS Charter/Headboat permit, an Atlantic Tunas General Category permit, or a Swordfish General Commercial permit, as specified in § 635.4(c).

    (22) Fish for, retain, possess, or land sharks without deploying circle hooks when fishing at a registered HMS fishing tournament that has awards or prizes for sharks, as specified in § 635.21(f) and (k) and § 635.22(c)(1).

    (23) Fish for, retain, possess, or land sharks without deploying circle hooks when issued an Atlantic HMS Angling permit or HMS Charter/Headboat permit with a shark endorsement, as specified in in § 635.21(f) and (k) and § 635.22(c)(1).

    (24) Release sharks with more than 3 feet (91.4 cm) of trailing gear, as specified in § 635.21(c)(6).

    (25) Fail to follow the fleet communication and relocation protocol for dusky sharks as specified at § 635.21(c)(6), (d)(2), and (g)(5).

    (26) Deploy bottom longline gear without circle hooks, or have on board both bottom longline gear and non-circle hooks, as specified at § 635.21(d)(4).

    [FR Doc. 2016-25051 Filed 10-17-16; 8:45 am] BILLING CODE 3510-22-P
    81 201 Tuesday, October 18, 2016 Notices DEPARTMENT OF AGRICULTURE Natural Resources Conservation Service [Docket No. NRCS-2016-0010] Notice of Proposed Changes to Section I of the Wisconsin Field Office Technical Guide AGENCY:

    Natural Resources Conservation Service (NRCS).

    ACTION:

    Notice of availability of proposed changes in the NRCS Wisconsin Field Office Technical Guides for review and comment.

    SUMMARY:

    NRCS is proposing to revise Section I of the Wisconsin Field Office Technical Guide to include “Wisconsin Wetland Determination Methods” which will replace the existing “Wisconsin Wetland Mapping Conventions issued May 1, 1998” (commonly referred as State Wetland Mapping Conventions). The Wisconsin Wetland Determination Methods will be used as part of the technical documents and procedures to conduct wetland determinations on agriculture land as part of the Food Security Act of 1985 (as amended).

    DATES:

    Effective Date: Effective October 18, 2016. Guidance for Wisconsin Wetland Determination Methods is in final draft status.

    Comment Date: Submit comments on or before November 17, 2016. The final version of the Wisconsin Wetland Determination Methods will be adopted after the close of the 30-day period and after consideration of all comments.

    ADDRESSES:

    Comments should be submitted, identified by Docket Number NRCS-2016-0010, using any of the following methods:

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

    Mail or hand-delivery: Submit state specific comments to the Wisconsin NRCS State Office, located at 8030 Excelsior Drive, Suite 200, Madison, WI 53737-2906.

    • NRCS will post all comments on http://www.regulations.gov. In general, personal information provided with comments will be posted. If your comment includes your address, phone number, email, or other personal identifying information, your comments, including personal information, may be available to the public. You may ask in your comment that your personal identifying information be withheld from public view, but this cannot be guaranteed.

    FOR FURTHER INFORMATION CONTACT:

    Jimmy Bramblett, Wisconsin State Conservationist. Phone: 608-662-4422, by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    Guidance for Wisconsin Wetland Determination Methods will be used as part of the technical documents and procedures to conduct wetland determinations on agricultural land as required by 16 U.S.C. 3822. NRCS is required by 16 U.S.C. 3862 to make available for public review and comment all proposed revisions to standards and procedures used to carry out highly erodible land and wetland provisions of the law.

    All comments will be considered. If no comments are received, Guidance for Wisconsin Wetland Determination Methods will be considered final.

    Electronic copies of the proposed Guidance for Wisconsin Wetland Determination Methods are available through http://www.regulations.gov by accessing Docket No. NRCS-2016-0010. Alternatively, copies can be downloaded or printed from the Wisconsin NRCS Web site located at: http://www.nrcs.usda.gov/wps/portal/nrcs/site/wi/home/. Requests for paper versions or inquiries may be directed to the Wisconsin State Conservationist at the contact point shown above.

    Signed this 5th day of October, 2016, in Madison, WI. Jimmy Bramblett, State Conservationist.
    [FR Doc. 2016-25047 Filed 10-17-16; 8:45 am] BILLING CODE 3410-16-P
    DEPARTMENT OF AGRICULTURE Rural Business-Cooperative Service Notice of Solicitation of Applications for the Rural Energy for America Program for Federal Fiscal Year 2017 AGENCY:

    Rural Business-Cooperative Service, USDA.

    ACTION:

    Notice.

    SUMMARY:

    The Rural Business-Cooperative Service (the Agency) announces the acceptance of applications under the Rural Energy for America Program (REAP) which is designed to help agricultural producers and rural small businesses reduce energy costs and consumption and help meet the Nation's critical energy needs. REAP have two types of funding assistance: (1) Renewable Energy Systems and Energy Efficiency Improvements Assistance, and (2) Energy Audit and Renewable Energy Development Assistance Grants.

    The Renewable Energy Systems and Energy Efficiency Improvement Assistance provides grants and guaranteed loans to agricultural producers and rural small businesses to purchase and install renewable energy systems and make energy efficiency improvements to their operations. Eligible renewable energy systems for REAP provide energy from: Wind, solar, renewable biomass (including anaerobic digesters), small hydro-electric, ocean, geothermal, or hydrogen derived from these renewable resources.

    The Energy Audit and Renewable Energy Development Assistance Grant is available to a unit of State, Tribal, or local government; instrumentality of a State, Tribal, or local government; institution of higher education; rural electric cooperative; a public power entity; or a council, as defined in 16 U.S.C. 3451. The recipient of grant funds, grantee, will establish a program to assist agricultural producers and rural small businesses with evaluating the energy efficiency and the potential to incorporate renewable energy technologies into their operations.

    DATES:

    See under SUPPLEMENTARY INFORMATION section.

    FOR FURTHER INFORMATION CONTACT:

    The applicable USDA Rural Development Energy Coordinator for your respective State, as identified via the following link: http://www.rd.usda.gov/files/RBS_StateEnergyCoordinators.pdf.

    For information about this Notice, please contact Maureen Hessel, Business Loan and Grant Analyst, USDA Rural Development, Energy Division, 1400 Independence Avenue SW., Stop 3225, Room 6870, Washington, DC 20250. Telephone: (202) 401-0142. Email: [email protected]

    SUPPLEMENTARY INFORMATION: I. Program Description

    The Rural Energy for America Program (REAP) helps agricultural producers and rural small businesses reduce energy costs and consumption and helps meet the Nation's critical energy needs. REAP has two types of funding assistance: (1) Renewable Energy Systems and Energy Efficiency Improvements Assistance and (2) Energy Audit and Renewable Energy Development Assistance Grants.

    The Renewable Energy Systems and Energy Efficiency Improvements Assistance provides grants and guaranteed loans to agricultural producers and rural small businesses for renewable energy systems and energy efficiency improvements. Eligible renewable energy systems for REAP provide energy from: Wind, solar, renewable biomass (including anaerobic digesters), small hydro-electric, ocean, geothermal, or hydrogen derived from these renewable resources.

    The Energy Audit and Renewable Energy Development Assistance Grant is available to a unit of State, Tribal, or local government; instrumentality of a State, Tribal, or local government; institution of higher education; rural electric cooperative; a public power entity; or a council, as defined in 16 U.S.C. 3451. The recipient of grant funds, (grantee), will establish a program to assist agricultural producers and rural small businesses with evaluating the energy efficiency and the potential to incorporate renewable energy technologies into their operations.

    A. General. Applications for REAP can be submitted any time throughout the year. This Notice announces the deadline times and dates that applications have to be received to be considered for REAP funds provided by the Agricultural Act of 2014, (2014 Farm Bill), and any appropriated funds that REAP may receive from the appropriation for Federal fiscal year (FY) 2017 for grants, guaranteed loans, and combined grants and guaranteed loans to purchase and install renewable energy systems, and make energy efficiency improvements; and for grants to conduct energy audits and renewable energy development assistance.

    The administrative requirements in effect at the time the application window closes for a competition will be applicable to each type of funding available under REAP and are described in 7 CFR part 4280, subpart B. In addition to the other provisions of this Notice:

    (1) The provisions specified in 7 CFR 4280.101 through 4280.111 apply to each funding type described in this Notice.

    (2) The requirements specified in 7 CFR 4280.112 through 4280.124 apply to renewable energy system and energy efficiency improvements project grants.

    (3) The requirements specified in 7 CFR 4280.125 through 4280.152 apply to guaranteed loans for renewable energy system and energy efficiency improvements projects. For Federal FY 2017, the guarantee fee amount is one percent of the guaranteed portion of the loan, and the annual renewal fee is one-quarter of 1 percent (0.250 percent) of the guaranteed portion of the loan.

    (4) The requirements specified in 7 CFR 4280.165 apply to a combined grant and guaranteed loan for renewable energy system and energy efficiency improvements projects.

    (5) The requirements specified in 7 CFR 4280.186 through 4280.196 apply to energy audit and renewable energy development assistance grants.

    II. Federal Award Information

    A. Statutory Authority. This program is authorized under 7 U.S.C. 8107.

    B. Catalog of Federal Domestic Assistance (CFDA) Number. 10.868.

    C. Funds Available. This Notice is announcing deadline times and dates for applications to be submitted for REAP funds provided by the 2014 Farm Bill and any appropriated funds that REAP may receive from the congressional enactment of a full-year appropriation for Federal FY 2017. This Notice is being published prior to the congressional enactment of a full-year appropriation for Federal FY 2017. The Agency will continue to process applications received under this announcement and should REAP receive appropriated funds, these funds will be announced on the following Web site: www.rd.usda.gov/programs-services/rural-energy-america-program-renewable-energy-systems-energy-efficiency, and are subject to the same provisions in this Notice.

    To ensure that small projects have a fair opportunity to compete for the funding and are consistent with the priorities set forth in the statute, the Agency will set-aside 20 percent of the Federal FY 2017 funds until June 30, 2017, to fund grants of $20,000 or less.

    (1) Renewable energy system and energy efficiency improvements grant-funds. There will be allocations of grant funds to each Rural Development State Office for renewable energy system and energy efficiency improvements applications. The State allocations will include an allocation for grants of $20,000 or less funds and an allocation of grant funds that can be used to fund renewable energy system and energy efficiency improvements applications for either grants of $20,000 or less or grants of more than $20,000, as well as the grant portion of a combination grant and guaranteed loan. These funds are commonly referred to as unrestricted grant funds. The funds for grants of $20,000 or less can only be used to fund grants requesting $20,000 or less.

    (2) Renewable energy system and energy efficiency improvements loan guarantee funds. Rural Development's National Office will maintain a reserve of guaranteed loan funds.

    (3) Renewable energy system and energy efficiency improvements combined grant and guaranteed loan funds. The amount of funds available for combined grant and guaranteed loan applications are outlined in paragraphs II.(C)(1) and II.(C)(2) of this Notice.

    (4) Energy audit and renewable energy development assistance grant funds. The amount of funds available for energy audits and renewable energy development assistance in Federal FY 2017 will be 4 percent of Federal FY 2017 mandatory funds and will be maintained in a National Office reserve. Obligations of these funds will take place through March 31, 2017. Any unobligated balances will be moved to the renewable energy budget authority account, and may be utilized in any of the renewable energy system and energy efficiency improvements national competitions.

    D. Approximate Number of Awards. The estimated number of awards is 1,000 based on the historical average grant size and the anticipated mandatory funding of $50 million for Federal FY 2017, but will depend on the actual amount of funds made available and on the number of eligible applicants participating in this program.

    E. Type of Instrument. Grant, guaranteed loan, and grant/guaranteed loan combinations.

    III. Eligibility Information

    The eligibility requirements for the applicant, borrower, lender, and project (as applicable) are clarified in 7 CFR part 4280 subpart B, and are summarized in this Notice. Failure to meet the eligibility criteria by the time of the competition window may result in the Agency reviewing an application, but will preclude the application from receiving funding until all criteria have been met.

    A. Eligible Applicants. This solicitation is for agricultural producers and rural small businesses, as well as units of State, Tribal, or local government; instrumentalities of a State, Tribal, or local government; institutions of higher education; rural electric cooperatives; public power entities; and councils, as defined in 16 U.S.C. 3451, which serve agricultural producers and rural small businesses. To be eligible for the grant portion of the program, an applicant must meet the requirements specified in 7 CFR 4280.109, 7 CFR 4280.110, and 7 CFR 4280.112, or 7 CFR 4280.186, as applicable.

    B. Eligible Lenders and Borrowers. To be eligible for the guaranteed portion of the program, lenders and borrowers must meet the eligibility requirements in 7 CFR 4280.125 and 7 CFR 4280.127, as applicable.

    C. Eligible Projects. To be eligible for this program, a project must meet the eligibility requirements specified in 7 CFR 4280.113, 7 CFR 4280.128, and 7 CFR 4280.187, as applicable.

    D. Cost Sharing or Matching. The 2014 Farm Bill mandates the maximum percentages of funding that REAP can provide. Additional clarification is provided in paragraphs IV.F.(1) through (3).

    (1) Renewable energy system and energy efficiency improvements funding. Requests for guaranteed loan and combined grant and guaranteed loan will not exceed 75 percent of eligible project costs, with any Federal grant portion not to exceed 25 percent of the total eligible project costs, whether the grant is part of a combination request or is a grant-only.

    (2) Energy audit and renewable energy development funds. Requests for the energy audit and renewable energy development assistance grants, will indicate that the grantee that conducts energy audits must require that, as a condition of providing the energy audit, the agricultural producer or rural small business pay at least 25 percent of the cost of the energy audit. The Agency recommended practice for on farm energy audits, audits for agricultural producers, ranchers, and farmers is the American Society of Agricultural and Biological Engineers S612 Level II audit. This audit conforms with program standards used by the Natural Resource Conservation Service. An applicant that has received one or more grants under this program must make satisfactory progress as indicated in 7 CFR 4280.100, which has been determined by the Agency to be the expenditure of 50 percent or more of the previously awarded grant by January 31, 2017, to be considered eligible for subsequent funding.

    E. Other. Ineligible project costs can be found in 7 CFR 4280.114(d), 7 CFR 4280.129(f), and 7 CFR 4280.188(c), as applicable. The U.S. Department of Agriculture Departmental Regulations and Laws that contain other compliance requirements are referenced in paragraphs VI.B.(1) through (3), and IV.F of this Notice. Applicants who have been found to be in violation of applicable Federal statutes will be ineligible.

    IV. Application and Submission Information

    A. Address to Request Application Package. Application materials may be obtained by contacting one of Rural Development's Energy Coordinators, as identified via the following link: www.rd.usda.gov/files/RBS_StateEnergyCoordinators.pdf. In addition, for grant applications, applicants may obtain electronic grant applications for REAP from www.grants.gov.

    B. Content and Form of Application Submission. Applicants seeking to participate in this program must submit applications in accordance with this Notice and 7 CFR part 4280, subpart B. Applicants must submit complete applications by the dates identified in Section IV.C. of this Notice, containing all parts necessary for the Agency to determine applicant and project eligibility, to score the application, and to conduct the technical evaluation, as applicable, in order to be considered.

    (1) Renewable energy system and energy efficiency improvements grant application.

    (a) Information for the required content of a grant application to be considered complete is found in 7 CFR part 4280, subpart B.

    (i) Grant applications for renewable energy systems and energy efficiency improvements projects with total project costs of $80,000 or less must provide information required by 7 CFR 4280.119.

    (ii) Grant applications for renewable energy systems and energy efficiency improvements projects with total project costs of $200,000 or less, but more than $80,000, must provide information required by 7 CFR 4280.118.

    (iii) Grant applications for renewable energy systems and energy efficiency improvements projects with total project costs of greater than $200,000 must provide information required by 7 CFR 4280.117.

    (iv) Grant applications for energy audits or renewable energy development assistance grant applications must provide information required by 7 CFR 4280.190.

    (b) All grant applications must be submitted either as hard copy to the appropriate Rural Development Energy Coordinator in the State in which the applicant's proposed project is located, or electronically using the Government-wide www.grants.gov Web site.

    (i) Applicants submitting a grant application as a hard copy must submit one original to the appropriate Rural Development Energy Coordinator in the State in which the applicant's proposed project is located. A list of USDA Rural Development Energy Coordinators is available via the following link: www.rd.usda.gov/files/RBS_StateEnergyCoordinators.pdf.

    (ii) Applicants submitting a grant application to the Agency via www.grants.gov (Web site) will find information about submitting an application electronically through the Web site, and may download a copy of the application package to complete it off line, upload and submit the completed application, including all necessary assurances and certifications, via www.grants.gov. After electronically submitting an application through the Web site, the applicant will receive an automated acknowledgement from www.grants.gov that contains a www.grants.gov tracking number. USDA Rural Development strongly recommends that applicants do not wait until the application deadline date to begin the application process through www.grants.gov.

    (c) After successful applicants are notified of the intent to make a Federal award, applicants must meet the requirements of 7 CFR 4280.122 (a) through (h) for the grant agreement to be executed.

    (2) Renewable energy system and energy efficiency improvements guaranteed loan application.

    (a) Information for the content required for a guaranteed loan application to be considered complete is found in 7 CFR 4280.137.

    (b) All guaranteed loan applications must be submitted as a hard copy to the appropriate Rural Development Energy Coordinator in the State in which the applicant's proposed project is located. A list of USDA Rural Development Energy Coordinators is available via the following link: www.rd.usda.gov/files/RBS_StateEnergyCoordinators.pdf.

    (c) After successful applicants are notified of the intent to make a Federal award, borrowers must meet the conditions prior to issuance of loan note guarantee as outlined in of 7 CFR 4280.142.

    (3) Renewable energy system and energy efficiency improvements combined guaranteed loan and grant application.

    (a) Information for the content required for a combined guaranteed loan and grant application to be considered complete is found in 7 CFR 4280.165(c).

    (b) All combined guaranteed loan and grant application applications must be submitted as hard copy to the appropriate Rural Development Energy Coordinator in the State in which the applicant's proposed project is located. A list of USDA Rural Development Energy Coordinators is available via the following link: www.rd.usda.gov/files/RBS_StateEnergyCoordinators.pdf.

    (c) After successful applicants are notified of the intent to make a Federal award, applicants must meet the requirements, including the requisite forms and certifications, specified in 7 CFR 4280.117, 4280.118, 4280.119, and 4280.137, as applicable, for the issuance of a grant agreement and loan note guarantee.

    (4) Energy audits or renewable development assistance grant applications.

    (a) Grant applications for energy audits or renewable energy development assistance must provide the information required by 7 CFR 4280.190 to be considered a complete application.

    (b) All energy audits or renewable development assistance grant applications must be submitted either as hard copy to the appropriate Rural Development Energy Coordinator in the State in which the applicant's proposed project is located, or electronically using the Government-wide www.grants.gov Web site. Instructions for submission of the application can be found at section IV.B. of this Notice.

    (c) After successful applicants are notified of the intent to make a Federal award, applicants must meet the requirements of 7 CFR 4280.195 for the grant agreement to be executed.

    5. Dun and Bradstreet Universal Numbering System (DUNS) Number and System for Award Management (SAM). All applicants, unless exempt under 2 CFR 25.110, or who have an exception approved by the Federal awarding agency under 2 CFR 25.110(d), are required to:

    (a) Be registered in SAM prior to submitting an application; which can be obtained at no cost via a toll-free request line at (866) 705-5711 or online at fedgov.dnb.com/webform.

    (b) Provide a valid DUNS number in its application.

    (c) Continue to maintain an active SAM registration with current information at all times during which it has an active Federal award or an application under consideration by the Agency.

    (d) If an applicant has not fully complied with the requirements of IV.C. (1) through (3) at the time the Agency is ready to make an award, the Agency may determine the applicant is not eligible to receive the award.

    C. Submission Dates and Times. Grant applications, guaranteed loan-only applications, and combined grant and guaranteed loan applications for financial assistance provided by the 2014 Farm Bill for Federal FY 2017, and for appropriated funds that REAP may receive from the appropriation for Federal FY 2017, may be submitted at any time on an ongoing basis. When an application window closes, the next application window opens on the following day. This Notice establishes the deadline dates for the applications to be received in order to be considered for funding. If an application window falls on a Saturday, Sunday, or Federal holiday, the application package is due the next business day. An application received after these dates will be considered with other applications received in the next application window. In order to be considered for funds under this Notice, complete applications must be received by the appropriate USDA Rural Development State Office or via www.grants.gov. The deadline for applications to be received to be considered for funding in Federal FY 2017 are outlined in the following paragraphs and also summarized in a table at the end of this section:

    (1) Renewable energy system and energy efficiency improvements grant applications and combination grant and guaranteed loan applications. Application deadlines for Federal FY 2017 grant funds are:

    (a) For applicants requesting $20,000 or less that wish to have their application compete for the “Grants of $20,000 or less set aside,” complete applications must be received no later than:

    (i) 4:30 p.m. local time on October 31, 2016, or

    (ii) 4:30 p.m. local time on March 31, 2017.

    (b) For applicants requesting grant funds of over $20,000 (unrestricted) or funding for a combination grant and guaranteed loan, complete applications must be received no later than 4:30 p.m. local time on March 31, 2017.

    (2) Renewable energy system and energy efficiency improvements guaranteed loan-only applications. Applications will be reviewed and processed when received, with periodic competitions.

    (3) Energy audits and renewable energy development assistance grant applications. Applications must be received no later than 4:30 p.m. local time on January 31, 2017.

    Application Application
  • window opening
  • dates
  • Application
  • window closing
  • dates
  • Renewable Energy Systems and Energy Efficiency Improvements Grants ($20,000 or less competing for up to approximately 50 percent of the set aside funds) May 3, 2016 October 31, 2016. Renewable Energy Systems and Energy Efficiency Improvements Grants ($20,000 or less competing for the remaining set aside funds) November 1, 2016 March 31, 2017 *. Renewable Energy Systems and Energy Efficiency Improvements Grants (Unrestricted grants, including combination grant and guaranteed loan) May 3, 2016 March 31, 2017 *. Renewable Energy Systems and Energy Efficiency Improvements Guaranteed Loans Continuous application cycle Continuous application cycle. Energy Audit and Renewable Energy Development Assistance Grants February 2, 2016 January 31, 2017. * Applications received after this date will be considered for the next funding cycle in the subsequent Federal FY.

    D. Intergovernmental Review. REAP is not subject to Executive Order 12372, Intergovernmental Review of Federal Programs.

    E. Funding Restrictions. The following funding limitations apply to applications submitted under this Notice.

    (1) Renewable energy system and energy efficiency improvements projects.

    (a) Applicants can be awarded only one renewable energy system project and one energy efficiency improvement grant in Federal FY 2017.

    (b) For renewable energy system grants, the minimum grant is $2,500 and the maximum is $500,000. For energy efficiency improvements grants, the minimum grant is $1,500 and the maximum grant is $250,000.

    (c) For renewable energy system and energy efficiency improvements loan guarantees, the minimum REAP guaranteed loan amount is $5,000 and the maximum amount of a guaranteed loan to be provided to a borrower is $25 million.

    (d) Renewable energy system and energy efficiency improvements guaranteed loan and grant combination applications. Paragraphs IV.E.(1)(b) and (c) of this Notice contain the applicable maximum amounts and minimum amounts for grants and guaranteed loans. Requests for guaranteed loan and combined grant and guaranteed loan will not exceed 75 percent of eligible project costs, with any Federal grant portion not to exceed 25 percent of the total eligible project costs, whether the grant is part of a combination request or is a grant-only.

    (2) Energy audit and renewable energy development assistance grants.

    (a) Applicants may submit only one energy audit grant application and one renewable energy development assistance grant application for Federal FY 2017 funds.

    (b) The maximum aggregate amount of energy audit and renewable energy development assistance grants awarded to any one recipient under this Notice cannot exceed $100,000 for Federal FY 2017.

    (c) The 2014 Farm Bill mandates that the recipient of a grant that conducts an energy audit for an agricultural producer or a rural small business must require the agricultural producer or rural small business to pay at least 25 percent of the cost of the energy audit, which shall be retained by the eligible entity for the cost of the audit.

    (3) Maximum grant assistance to an entity. For the purposes of this Notice, the maximum amount of grant assistance to an entity will not exceed $750,000 for Federal FY 2017 based on the total amount of the renewable energy system, energy efficiency improvements, energy audit, and renewable energy development assistance grants awarded to an entity under REAP.

    F. Other Submission Requirements.

    (1) Environmental information. For the Agency to consider an application, the application must include all environmental review documents with supporting documentation in accordance with 7 CFR part 1970. Any required environmental review must be completed prior to obligation of funds or the approval of the application. Applicants are advised to contact the Agency to determine environmental requirements as soon as practicable to ensure adequate review time.

    (2) Felony conviction and tax delinquent status. Corporate applicants submitting applications under this Notice must include Form AD 3030, “Representations Regarding Felony Conviction and Tax Delinquent Status for Corporate Applicants.” Corporate applicants who receive an award under this Notice will be required to sign Form AD 3031, “Assurance Regarding Felony Conviction or Tax Delinquent Status for Corporate Applicants.” Both forms can be found online at www.ocio.usda.gov/document/ad3030, and www.ocio.usda.gov/document/ad3031.

    (3) Original signatures. USDA Rural Development may request that the applicant provide original signatures on forms submitted through www.grants.gov at a later date.

    (4) Transparency Act Reporting. All recipients of Federal financial assistance are required to report information about first-tier sub-awards and executive compensation in accordance with 2 CFR part 170. If an applicant does not have an exception under 2 CFR 170.110(b), the applicant must then ensure that they have the necessary processes and systems in place to comply with the reporting requirements to receive funding.

    (5) Race, ethnicity, and gender. The Agency is requesting that each applicant provide race, ethnicity, and gender information about the applicant. The information will allow the Agency to evaluate its outreach efforts to under-served and under-represented populations. Applicants are encouraged to furnish this information with their applications, but are not required to do so. An applicant's eligibility or the likelihood of receiving an award will not be impacted by furnishing or not furnishing this information. However, failure to furnish this information may preclude the awarding of State Director and Administrator points in Section V.C.(1) of this Notice.

    V. Application Review Information

    A. Criteria. In accordance with 7 CFR part 4280 subpart B, the application dates published in Section IV.C. of this Notice identify the times and dates by which complete applications must be received in order to compete for the funds available.

    (1) Renewable energy systems and energy efficiency improvements grant applications. Complete renewable energy systems and energy efficiency improvements grant applications are eligible to compete in competitions as described in 7 CFR 4280.121.

    (a) Complete renewable energy systems and energy efficiency improvements grant applications requesting $20,000 or less are eligible to compete in up to five competitions as described in 7 CFR 4280.121(b).

    (b) Complete renewable energy systems and energy efficiency improvements grant applications, regardless of the amount of funding requested are eligible to compete in two competitions each Federal FY—a State competition and a national competition as described in 7 CFR 4280.121(a).

    (2) Renewable energy systems and energy efficiency improvements guaranteed loan applications. Complete guaranteed loan applications are eligible for periodic competitions as described in 7 CFR 4280.139(a).

    (3) Renewable energy systems and energy efficiency improvements combined guaranteed loan and grant applications. Complete combined guaranteed loan and grant applications are eligible to compete in two competitions each Federal FY—a State competition and a national competition as described in 7 CFR 4280.121(a).

    (4) Energy audit and renewable energy development assistance grant applications. Complete energy audit and renewable energy development assistance grants applications are eligible to compete in one national competition per Federal FY as described in 7 CFR 4280.193.

    B. Review and Selection Process. All complete applications will be scored in accordance with 7 CFR part 4280 subpart B and this section of the Notice.

    (1) Renewable energy systems and energy efficiency improvements grant applications. Renewable energy system and energy efficiency grant applications will be scored in accordance with 7 CFR 4280.120 and selections will be made in accordance with 7 CFR 4280.121. Due to the competitive nature of this program, applications are competed based on submittal date. The submittal date is the date the Agency receives a complete application. The complete application date is the date the Agency receives the last piece of information that allows the Agency to determine eligibility and to score, rank, and compete the application for funding.

    (a) Funds for renewable energy system and energy efficiency improvements grants of $20,000 or less will be allocated to the States. Eligible applications must be submitted by October 31, 2016, or May 1, 2017, in order to be considered for these set-aside funds. Approximately 50 percent of these funds will be made available for those complete applications the Agency receives by October 31, 2016, and approximately 50 percent of the funds for those complete applications the Agency receives by May 1, 2017. All unused State allocated funds for grants of $20,000 or less will be pooled to the National Office.

    (b) Eligible applications received by May 1, 2017, for renewable energy system and energy efficiency improvements grants of $20,000 or less, that are not funded by State allocations can be submitted to the National Office to compete against grant applications of $20,000 or less from other States at a national competition. Obligations of these funds will take place prior to June 30, 2017.

    (c) Eligible applications for renewable energy system and energy efficiency improvements, regardless of the amount of the funding request, received by May 1, 2017, can compete for unrestricted grant funds. Unrestricted grant funds will be allocated to the States. All unused State allocated unrestricted grant funds will be pooled to the National Office.

    (d) National unrestricted grant funds for all eligible renewable energy system and energy efficiency improvements grant applications received by May 1, 2017, which include grants of $20,000 or less, that are not funded by State allocations can be submitted to the National Office to compete against grant applications from other States at a final national competition.

    (2) Renewable energy systems and energy efficiency improvements guaranteed loan applications. Renewable energy systems and energy efficiency improvements guaranteed loan applications will be scored in accordance with 7 CFR 4280.135 and selections will be made in accordance with 7 CFR 4280.139. The National Office will maintain a reserve for renewable energy system and energy efficiency improvements guaranteed loan funds. Applications will be reviewed and processed when received. Those applications that meet the Agency's underwriting requirements, are credit worthy, and score a minimum of 50 points will compete in national competitions for guaranteed loan funds periodically. All unfunded eligible guaranteed loan-only applications received that do not score at least 50 points will be competed against other guaranteed loan-only applications from other States at a final national competition, if the guaranteed loan reserves have not been completely depleted, on September 1, 2017. If funds remain after the final guaranteed loan-only national competition, the Agency may elect to utilize budget authority to fund additional grant-only applications.

    (3) Renewable energy systems and energy efficiency improvements combined grant and guaranteed loan applications. Renewable energy systems and energy efficiency improvements combined grant and guaranteed loan applications will be scored in accordance with 7 CFR 4280.120 and selections will be made in accordance with 7 CFR 4280.121. Renewable energy system and energy efficiency improvements combined grant and guaranteed loan applications will compete with grant-only applications for grant funds allocated to their State. If the application is ranked high enough to receive State allocated grant funds, the State will request funding for the guaranteed loan portion of any combined grant and guaranteed loan applications from the National Office guaranteed loan reserve, and no further competition will be required. All unfunded eligible applications for combined grant and guaranteed loan applications that are received by May 1, 2017, and that are not funded by State allocations can be submitted to the National Office to compete against other grant and combined grant and guaranteed loan applications from other States at a final national competition.

    (4) Energy audit and renewable energy development assistance grant applications. Energy audit and renewable energy development assistance grants will be scored in accordance with 7 CFR 4280.192 and selections will be made in accordance with 7 CFR 4280.193. Energy audit and renewable energy development assistance grant funds will be maintained in a reserve at the National Office. Applications received by January 31, 2017 will compete for funding at a national competition, based on the scoring criteria established under 7 CFR 4280.192, will compete for funding at a national competition. If funds remain after the energy audit and renewable energy development assistance national competition, the Agency may elect to transfer budget authority to fund additional renewable energy system and energy efficiency improvements grants from the National Office reserve after pooling.

    C. State Director and Administrator Points. The State Director and the Administrator will take into consideration paragraphs V.C.(1) and (2) below in the awarding of points for eligible renewable energy systems and energy efficiency improvement grant applications submitted in Federal FY 2017:

    (1) 7 CFR 4280.120(g)(3) may allow for applicants who are members of unserved or under-served populations to receive additional points if one of the following criteria are met:

    (a) Owned by a veteran, including but not limited to individuals as sole proprietors, members, partners, stockholders, etc., of not less than 20 percent. In order to receive points, applicants must provide a statement in their applications to indicate that owners of the project have veteran status; or

    (b) Owned by a member of a socially-disadvantaged group, which are groups whose members have been subjected to racial, ethnic, or gender prejudice because of their identity as members of a group without regard to their individual qualities. In order to receive points, the application must include a statement to indicate that the owners of the project are members of a socially-disadvantaged group.

    (2) 7 CFR 4280.120(g)(4) may allow for applications that further a Presidential initiative, or a Secretary of Agriculture priority to receive additional points including:

    (a) Located in rural areas with the lowest incomes where, according to the most recent 5-year American Community Survey, show that at least 20 percent of the population is living in poverty. Or a project is located in a community (village, town, city, or Census Designated Place) with a median household income of 60 percent or less of the State's non-metropolitan median household income. This will support Secretary of Agriculture's priority of providing 20 percent of its funding to these areas of need; and

    (b) Located in designated Strike Force or Promise Zone areas, which is a Secretary of Agriculture's priority.

    D. Other Submission Requirements. Grant-only applications, guaranteed loan-only applications, and combined grant and guaranteed loan applications for financial assistance may be submitted at any time. In order to be considered for funds, complete applications must be received by the appropriate USDA Rural Development State Office in which the applicant's proposed project is located, or via www.grants.gov, as identified in Section IV.C., of this Notice.

    (1) Insufficient funds. If funds are not sufficient to fund the total amount of an application:

    (a) For State allocated funds:

    (i) The applicant must be notified that they may accept the remaining funds or submit the total request for National Office reserve funds available after pooling. If the applicant agrees to lower its grant request, the applicant must certify that the purposes of the project will be met and provide the remaining total funds needed to complete the project.

    (ii) If two or more grant or combination applications have the same score and remaining funds in the State allocation are insufficient to fully award them, the Agency will notify the applicants that they may either accept the proportional amount of funds or submit their total request for National Office reserve funds available after pooling. If the applicant agrees to lower its grant request, the applicant must certify that the purposes of the project will be met and provide the remaining total funds needed to complete the project.

    (b) The applicant notification for national funds will depend on size of the grant request.

    (i) For an application requesting a grant of $20,000 or less in which this is the fifth and final competition or for those applications requesting grants of over $20,000 and combined grant and guaranteed loan application, the applicant must be notified that they may accept the remaining funds or their grant application will be withdrawn. If the applicant agrees to lower the grant request, the applicant must certify that the purposes of the project will be met and provide the remaining total funds needed to complete the project.

    (ii) For an application requesting a grant of $20,000 or less which is eligible to compete in one or more additional competitions after the national competition, the applicant must be notified that they may accept the remaining funds or have their request considered in subsequent competitions. If the applicant agrees to lower its grant request, the applicant must certify that the purposes of the project will be met and provide the remaining total funds needed to complete the project.

    (iii) If two or more grant or combination applications have the same score and remaining funds are insufficient to fully award them, the Agency will notify the applicants that they may either accept the proportional amount of funds or be notified in accordance with V.D.(1)(b)(i) or (ii), as applicable.

    (iv) At its discretion, the Agency may instead allow the remaining funds to be carried over to the next Federal FY rather than selecting a lower scoring application(s) or distributing funds on a pro-rata basis.

    (2) Award considerations. All award considerations will be on a discretionary basis. In determining the amount of a renewable energy system or energy efficiency improvements grant or loan guarantee, the Agency will consider the six criteria specified in 7 CFR 4280.114(e) or 7 CFR 4280.129(g), as applicable.

    (3) Notification of funding determination. As per 7 CFR 4280.111(c) all applicants will be informed in writing by the Agency as to the funding determination of the application.

    VI. Federal Award Administration Information

    A. Federal Award Notices. The Agency will award and administer renewable energy system and energy efficiency improvements grants, guaranteed loans in accordance with 7 CFR 4280.122, and 7 CFR 4280.139, as applicable. The Agency will award and administer the energy audit and renewable energy development assistance grants in accordance with 7 CFR 4280.195. Notification requirements of 7 CFR 4280.111, apply to this Notice.

    B. Administrative and National Policy Requirements.

    (1) Equal Opportunity and Nondiscrimination. The Agency will ensure that equal opportunity and nondiscrimination requirements are met in accordance with the Equal Credit Opportunity Act, 15 U.S.C. 1691 et seq. and 7 CFR part 15d, Nondiscrimination in Programs and Activities Conducted by the U.S. Department of Agriculture. The Agency will not discriminate against applicants on the basis of race, color, religion, national origin, sex, marital status, or age (provided that the applicant has the capacity to contract); because all or part of the applicant's income derives from any public assistance program; or because the applicant has in good faith exercised any right under the Consumer Credit Protection Act, 15 U.S.C. 1601 et seq.

    (2) Civil Rights Compliance. Recipients of grants must comply with the Americans with Disabilities Act of 1990, 42 U.S.C. 12101 et seq., Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq., and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794. This may include collection and maintenance of data on the race, sex, and national origin of the recipient's membership/ownership and employees. These data must be available to conduct compliance reviews in accordance with 7 CFR 1901.204.

    (3) Environmental Analysis. 7 CFR part 1970, or successor regulation outlines environmental procedures and requirements for this subpart. Prospective applicants are advised to contact the Agency to determine environmental requirements as soon as practicable after they decide to pursue any form of financial assistance directly or indirectly available through the Agency.

    (4) Appeals. A person may seek a review of an Agency decision or appeal to the National Appeals Division in accordance with 7 CFR 4280.105.

    (5) Reporting. Grants, guaranteed loans, combination guaranteed loans and grants, and energy audit and energy audit and renewable energy development assistance grants that are awarded are required to fulfill the reporting requirements as specified in Departmental Regulations, the Grant Agreement, and in 7 CFR part 4280 subpart B and paragraphs VI.B.(5)(a) through (d) of this Notice.

    (a) Renewable energy system and energy efficiency improvements grants that are awarded are required to fulfill the reporting requirements as specified in 7 CFR 4280.123.

    (b) Guaranteed loan applications that are awarded are required to fulfill the reporting requirements as specified in 7 CFR 4280.143.

    (c) Combined guaranteed loan and grant applications that are awarded are required to fulfill the reporting requirements as specified in 7 CFR 4280.165(f).

    (d) Energy audit and renewable energy development assistance grants grant applications that are awarded are required to fulfill the reporting requirements as specified in 7 CFR 4280.196.

    VII. Federal Awarding Agency Contacts

    For further information contact the applicable USDA Rural Development Energy Coordinator for your respective State, as identified via the following link: www.rd.usda.gov/files/RBS_StateEnergyCoordinators.pdf.

    For information about this Notice, please contact Maureen Hessel, Business Loan and Grant Analyst, USDA Rural Development, Energy Division, 1400 Independence Avenue SW., Stop 3225, Room 6866, Washington, DC 20250. Telephone: (202) 401-0142. Email: [email protected]

    VIII. Other Information A. Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995, the information collection requirements associated with renewable energy system and energy efficiency improvements grants and guaranteed loans, as covered in this Notice, have been approved by the Office of Management and Budget (OMB) under OMB Control Number 0570-0050. The information collection requirements associated with energy audit and renewable energy development assistance grants have also been approved by OMB under OMB Control Number 0570-0059.

    B. Nondiscrimination Statement

    The U.S. Department of Agriculture (USDA) prohibits discrimination against its customers, employees, and applicants for employment on the basis of race, color, national origin, age, disability, sex, gender identity, reprisal and where applicable, political beliefs, marital status, familial or parental status, religion, sexual orientation, or all or part of an individual's income is derived from any public assistance program, or protected genetic information in employment or in any program or activity conducted or funded by the Department. (Not all prohibited bases will apply to all programs and/or employment activities.)

    If you wish to file a Civil Rights program complaint of discrimination, complete the USDA Program Discrimination Complaint Form (PDF), found online at www.ascr.usda.gov/complaint_filing_cust.html, or complete the form at any USDA office, or call (866) 632-9992 to request the form. You may also write a letter containing all of the information requested in the form. Send your completed complaint form or letter to us by mail at U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW., Washington, DC 20250-9410, by fax (202) 690-7442 or email at [email protected]

    Individuals who are deaf, hard of hearing or have speech disabilities and wish to file either an EEO or program complaint, please contact USDA through the Federal Relay Service at (800) 877-8339 or (800) 845-6136 (in Spanish).

    Persons with disabilities, who wish to file a program complaint, please see information above on how to contact us directly by mail or by email. If you require alternative means of communication for program information (e.g., Braille, large print, audiotape, etc.) please contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

    Dated: October 12, 2016. Justin Hatmaker, Acting Administrator, Rural Business-Cooperative Service.
    [FR Doc. 2016-25163 Filed 10-17-16; 8:45 am] BILLING CODE 3410-XY-P
    DEPARTMENT OF AGRICULTURE Rural Utilities Service Dairyland Power Cooperative: Notice of Intent To Prepare an Environmental Impact Statement and Hold Public Scoping Meetings AGENCY:

    Rural Utilities Service, USDA.

    ACTION:

    Notice of Intent to Prepare an Environmental Impact Statement and Hold Public Scoping Meetings.

    SUMMARY:

    The Rural Utilities Service (RUS) intends to prepare an Environmental Impact Statement (EIS) and hold public scoping meetings in connection with possible impacts related to the Cardinal-Hickory Creek Transmission Line Project proposed by Dairyland Power Cooperative (DPC). Other utilities participating in the Project are American Transmission Company LLC, by its corporate manager ATC Management Inc. and ITC Midwest LLC.

    The proposal consists of the construction of a 345-kilovolt (kV) transmission line and associated infrastructure connecting the Hickory Creek Substation in Dubuque County, Iowa, with the Cardinal Substation in the Town of Middleton, Wisconsin (near Madison, Wisconsin). The Project also includes a new intermediate 345/138-kV substation near the Village of Montfort in either Grant County or Iowa County, Wisconsin. The total length of the 345-kV transmission lines associated with the proposed project will be approximately 125 miles. DPC and the other project participants have identified proposed and alternate segments and locations for transmission lines and associated facilities and for the intermediate substation. Dairyland Power Cooperative is requesting RUS to provide financing for its portion of the proposed project.

    DATES:

    RUS will conduct four public scoping meetings in an open-house format at the following locations:

    Date Location Time Venue October 31, 2016 Peosta, Iowa 3:00-6:00 p.m Peosta Community Center, 7896 Burds Road, Peosta, IA 53068. November 1, 2016 Cassville, Wisconsin 4:00-7:00 p.m Cassville Middle School Cafeteria, 715 E. Amelia Street, Cassville, WI 53806. November 2, 2016 Dodgeville, Wisconsin 4:00-7:00 p.m Dodgeville Middle School Cafeteria, 951 Chapel St., Dodgeville, WI 53533. November 3, 2016 Middleton, Wisconsin 4:00-7:00 p.m Madison Marriott West, 1313 John Q Hammons Dr., Middleton, WI 53562. ADDRESSES:

    To send comments or for further information, contact Dennis Rankin, Environmental Protection Specialist, U.S. Department of Agriculture, Rural Utilities Service, 1400 Independence Avenue SW., Room 2244, Stop 1571, Washington, DC 20250-1571 Email: [email protected] Washington, DC 20250-1571.

    An Alternative Evaluation Study (AES) and Macro Corridor Study (MCS), prepared by Dairyland Power Cooperative, will be presented at the public scoping meetings. The reports are available for public review at the RUS address provided in this notice and at Dairyland Power Cooperative, 3251 East Avenue, South, La Crosse, WI 54602. In addition, the reports will be available at RUS' Web site, http://www.rd.usda.gov/publications/environmental-studies/impact-statements and at local libraries in the project area.

    SUPPLEMENTARY INFORMATION:

    Preliminary proposed transmission line corridors, the siting area for the intermediate substation, and the two existing end-point substations have been identified. The EIS will address the construction, operation, and management of the proposed project, which includes the following: A new 345-kV terminal within the existing Hickory Creek Substation in Dubuque County, Iowa; a new intermediate 345/138-kV substation near the Village of Montfort in either Grant or Iowa County, Wisconsin; a new 345-kV terminal within the existing Cardinal Substation in the Town of Middleton in Dane County, Wisconsin; a new 45- to 65-mile (depending on the final route) 345-kV transmission line between the Hickory Creek Substation and the intermediate substation; a new 45- to 60-mile (depending on the final route) 345-kV transmission line between the intermediate substation and the existing Cardinal Substation; a short, less than one-mile, 69-kV line in Iowa; facility reinforcement needed in Iowa and Wisconsin; construction and maintenance of access roads for all proposed transmission lines and rebuild of the Turkey River Substation in Dubuque County, Iowa with two 161/69 kV transformers, four 161-kV circuit breakers, and three 69-kV circuit breakers.

    Total length of the transmission lines for the proposed project will be approximately 125 miles. The project study area includes part or all of the following counties in Iowa: Clayton and Dubuque. In Wisconsin, the project area includes parts of the following counties: Dane, Grant, Iowa, and Lafayette.

    Among the alternatives RUS will address in the EIS is the No Action alternative, under which the project would not be undertaken. In the EIS, the effects of the proposed project will be compared to the existing conditions in the area affected. Alternative transmission line corridors and the intermediate substation location will be refined as part of the EIS scoping process and will be addressed in the Draft EIS. RUS will carefully study public health and safety, environmental impacts, and engineering aspects of the proposed project and all related facilities.

    The U.S. Army Corps of Engineers (USACE) and the U.S. Fish and Wildlife Service (USFWS) are participating in the environmental review process as cooperating agencies, with RUS as the lead Federal agency.

    RUS will use input provided by government agencies, private organizations, and the public in the preparation of the Draft EIS. The Draft EIS will be available for review and comment for 45 days. A Final EIS that considers all comments received will subsequently be prepared. The Final EIS will be available for review and comment for 30 days. Following the 30- day comment period, RUS will prepare a Record of Decision (ROD). Notices announcing the availability of the Draft EIS, the Final EIS, and the ROD will be published in the Federal Register and in local newspapers.

    Any final action by RUS related to the proposed project will be subject to, and contingent upon, compliance with all relevant federal, state, and local environmental laws and regulations and completion of the environmental review requirements as prescribed in the RUS Environmental Policies and Procedures (7 CFR part 1970).

    Dated: October 12, 2016. Kellie Kubena, Director, Engineering and Environmental Staff, Rural Utilities Service.
    [FR Doc. 2016-25132 Filed 10-17-16; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security Discontinuance of Information Collection 0694-0009: Triangular Transactions “Stamp” Covered by a U.S. Import Certificate AGENCY:

    Bureau of Industry and Security, Commere.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, has discontinued Information Collection 0694-0009, “Triangular Transactions Covered by a U.S. Import Certificate.” Although this collection has been discontinued, the Triangular Transactions “Stamp” is still valid and has been added to collection 0694-0017 as a supplemental document.

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information should be directed to Mark Crace, BIS ICB Liaison, (202)482-8093 or [email protected]

    Sheleen Dumas, Departmental PRA Lead, Office of the Chief Information Officer.
    [FR Doc. 2016-25125 Filed 10-17-16; 8:45 am] BILLING CODE 3510-33-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-588-876, A-583-859, A-489-829] Steel Concrete Reinforcing Bar From Japan, Taiwan and the Republic of Turkey: Initiation of Less-Than-Fair-Value Investigations AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    DATES:

    Effective October 11, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Emily Halle at (202) 482-0176 (Japan); Jun Jack Zhao at (202) 482-1396 (Taiwan); and Myrna Lobo at (202) 482-2371 (Republic of Turkey), AD/CVD Operations, Enforcement and Compliance, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.

    SUPPLEMENTARY INFORMATION:

    The Petitions

    On September 20, 2016, the Department of Commerce (the Department) received antidumping duty (AD) petitions concerning imports of steel concrete reinforcing bar (rebar) from Japan, Taiwan, and the Republic of Turkey (Turkey), filed in proper form on behalf of the Rebar Trade Action Coalition and its individual members (Petitioners).1 The Petitions were accompanied by a countervailing duty (CVD) petition on rebar from Turkey.2 Petitioners are domestic producers of rebar.3

    1See Petition for the Imposition of Antidumping and Countervailing Duties: Steel Concrete Reinforcing Bar from Japan, Taiwan, and the Republic of Turkey, dated September 20, 2016 (the Petitions). The individual members of the Rebar Trade Action Coalition are Bayou Steel Group, Byer Steel Group, Inc., Commercial Metals Company, Gerdau Ameristeel U.S. Inc., Nucor Corporation, and Steel Dynamics, Inc.

    2Id.

    3See Volume I of the Petitions, at 2 and Exhibits I-1.

    On September 23 and 30, 2016, the Department requested additional information and clarification of certain areas of the Petitions.4 Petitioners filed responses to these requests on September 28, October 4, and October 5, 2016, respectively.5

    4See Letter from the Department to Petitioners entitled “Petitions for the Imposition of Antidumping Duties on Imports of Steel Concrete Reinforcing Bar from Japan, Taiwan, and the Republic of Turkey and Countervailing Duties on Imports of Steel Concrete Reinforcing Bar from the Republic of Turkey: Supplemental Questions,” dated September 23, 2016 (General Issues Supplemental Questionnaire); see also Letter from the Department to Petitioners entitled “Petition for the Imposition of Antidumping Duties on Imports of Steel Concrete Reinforcing Bar from Japan: Supplemental Questions,” dated September 23, 2016 (Japan Supplemental Questionnaire); see also Letter from the Department to Petitioners entitled “Petition for the Imposition of Antidumping Duties on Imports of Steel Concrete Reinforcing Bar from Taiwan: Supplemental Questions,” dated September 23, 2016 (Taiwan Supplemental Questionnaire); see also Letter from the Department to Petitioners entitled “Petition for the Imposition of Antidumping Duties on Imports of Steel Concrete Reinforcing Bar from the Republic of Turkey: Supplemental Questions,” dated September 23, 2016 (Turkey Supplemental Questionnaire); see also Memorandum to the File from Vicki Flynn, Senior Policy Analyst, Office of Policy, Re: “Petitions for the Imposition of Antidumping and Countervailing Duties on Imports of Steel Concrete Reinforcing Bar from the Republic of Turkey and Antidumping Duties on Imports from Japan and Taiwan, Subject: Telephone Conversation with Petitioners' Counsel,” dated September 30, 2016 (Memorandum on Telephone Conversation with Petitioners' Counsel re: Scope and Other Issues).

    5See Letter from Petitioners to the Department entitled “Re: Supplement to the Petition for the Imposition of Antidumping and Countervailing Duties on Steel Concrete Reinforcing Bar from Japan, Taiwan, and the Republic of Turkey: Response to the Department's Supplemental Questions,” dated September 28, 2016 (General Issues Supplement); see also Letter from Petitioners to the Department entitled “Re: Supplement to the Petition for the Imposition of Antidumping and Countervailing Duties on Steel Concrete Reinforcing Bar from Japan: Response to the Department's Supplemental Questions,” dated September 28, 2016 (Japan Supplement); see also Letter from Petitioners to the Department entitled “Re: Supplement to the Petition for the Imposition of Antidumping and Countervailing Duties on Steel Concrete Reinforcing Bar from Taiwan: Response to the Department's Supplemental Questions,” dated September 28, 2016 (Taiwan Supplement); see also Letter from Petitioners to the Department entitled “Re: Supplement to the Petition for the Imposition of Antidumping and Countervailing Duties on Steel Concrete Reinforcing Bar from the Republic of Turkey: Response to the Department's Supplemental Questions,” dated September 28, 2016 (Turkey Supplement); see also Letter from Petitioners to the Department entitled “Re: Supplement to the Petition for the Imposition of Antidumping and Countervailing Duties on Steel Concrete Reinforcing Bar from Japan, Taiwan, and the Republic of Turkey: Response to the Department's Supplemental Questions,” dated October 4, 2016 (Second General Issues Supplement); see also Letter from Petitioners to the Department entitled “Steel Concrete Reinforcing Bar from Japan, Taiwan, and the Republic of Turkey: Revised Scope, Amendment to Petition for the Imposition of Antidumping and Countervailing Duties,” dated October 5, 2016 (Third General Issues Supplement).

    In accordance with section 732(b) of the Tariff Act of 1930, as amended (the Act), Petitioners allege that imports of rebar from Japan, Taiwan, and Turkey are being, or are likely to be, sold in the United States at less-than-fair value within the meaning of section 731 of the Act, and that such imports are materially injuring, or threatening material injury to, an industry in the United States. Also, consistent with section 732(b)(1) of the Act, Petitioners state that the Petitions are accompanied by information reasonably available to Petitioners supporting their allegations.

    The Department finds that Petitioners filed these Petitions on behalf of the domestic industry because Petitioners are interested parties as defined in sections 771(9)(C) and (E) of the Act. The Department also finds that Petitioners demonstrated sufficient industry support with respect to the initiation of the AD investigations that Petitioners are requesting.6

    6See the “Determination of Industry Support for the Petitions” section below.

    Period of Investigation

    Because the Petitions were filed on September 20, 2016, the period of investigation (POI) for each investigation is, pursuant to 19 CFR 351.204(b)(1), July 1, 2015, through June 30, 2016.

    Scope of the Investigations

    The product covered by these investigations is rebar from Japan, Taiwan, and Turkey. For a full description of the scope of these investigations, see the “Scope of the Investigations,” at Appendix I of this notice. Note that one paragraph in the description of the scope of these investigations in Appendix I applies by its express terms solely to the merchandise covered by the concurrent countervailing duty investigation of rebar from Turkey and does not apply to these less-than-fair-value investigations.

    Comments on Scope of the Investigations

    During our review of the Petitions, the Department issued questions to, and received responses from, Petitioners pertaining to the proposed scope to ensure that the scope language in the Petitions would be an accurate reflection of the products for which the domestic industry is seeking relief.7

    7See General Issues Supplemental Questionnaire and General Issues Supplement; see also Memorandum on Telephone Conversation with Petitioners' Counsel re: Scope and Other Issues and Third General Issues Supplement.

    As discussed in the preamble to the Department's regulations, we are setting aside a period for interested parties to raise issues regarding product coverage (scope). The Department will consider all comments received from parties and, if necessary, will consult with parties prior to the issuance of the preliminary determinations. If scope comments include factual information (see 19 CFR 351.102(b)(21)), all such factual information should be limited to public information. In order to facilitate preparation of its questionnaires, the Department requests all interested parties to submit such comments by 5:00 p.m. Eastern Daylight Time (EDT) on October 31, 2016, which is 20 calendar days from the signature date of this notice. Any rebuttal comments, which may include factual information (also should be limited to public information), must be filed by 5:00 p.m. EST (Eastern Standard Time) on November 10, 2016, which is 10 calendar days after the initial comments. All such comments must be filed on the records of each of the concurrent AD and CVD investigations.

    The Department requests that any factual information the parties consider relevant to the scope of the investigations be submitted during this time period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigations may be relevant, the party may contact the Department and request permission to submit the additional information. As stated above, all such comments must be filed on the records of each of the concurrent AD and CVD investigations.

    Filing Requirements

    All submissions to the Department must be filed electronically using Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS).8 An electronically filed document must be received successfully in its entirety by the time and date when it is due. Documents excepted from the electronic submission requirements must be filed manually (i.e., in paper form) with Enforcement and Compliance's APO/Dockets Unit, Room 18022, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, and stamped with the date and time of receipt by the applicable deadlines.

    8See Antidumping and Countervailing Duty Proceedings: Electronic Filing Procedures; Administrative Protective Order Procedures, 76 FR 39263 (July 6, 2011) for details of the Department's electronic filing requirements, which went into effect on August 5, 2011. Information on help using ACCESS can be found at https://access.trade.gov/help.aspx and a handbook can be found at https://access.trade.gov/help/Handbook%20on%20Electronic%20Filling%20Procedures.pdf.

    Comments on Product Characteristics for AD Questionnaires

    The Department will be giving interested parties an opportunity to provide comments on the appropriate physical characteristics of rebar to be reported in response to the Department's AD questionnaires. This information will be used to identify the key physical characteristics of the merchandise under consideration in order to report the relevant costs of production accurately as well as to develop appropriate product-comparison criteria.

    Interested parties may provide any information or comments that they feel are relevant to the development of an accurate list of physical characteristics. Specifically, they may provide comments as to which characteristics are appropriate to use as: (1) General product characteristics and (2) product-comparison criteria. We note that it is not always appropriate to use all product characteristics as product-comparison criteria. We base product-comparison criteria on meaningful commercial differences among products. In other words, although there may be some physical product characteristics utilized by manufacturers to describe rebar, it may be that only a select few product characteristics take into account commercially meaningful physical characteristics. In addition, interested parties may comment on the order in which the physical characteristics should be used in matching products. Generally, the Department attempts to list the most important physical characteristics first and the least important characteristics last.

    In order to consider the suggestions of interested parties in developing and issuing the AD questionnaires, all product characteristics comments must be filed by 5:00 p.m. EDT on October 31, 2016, which is 20 calendar days from the signature date of this notice. Any rebuttal comments must be filed by 5:00 p.m. EST on November 10, 2016. All comments and submissions to the Department must be filed electronically using ACCESS, as explained above, on the records of each of the concurrent AD investigations.

    Determination of Industry Support for the Petitions

    Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”

    Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product,9 they do so for different purposes and pursuant to a separate and distinct authority. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to law.10

    9See section 771(10) of the Act.

    10See USEC, Inc. v. United States, 132 F. Supp. 2d 1, 8 (CIT 2001) (citing Algoma Steel Corp., Ltd. v. United States, 688 F. Supp. 639, 644 (CIT 1988), aff'd 865 F.2d 240 (Fed. Cir. 1989)).

    Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (i.e., the class or kind of merchandise to be investigated, which normally will be the scope as defined in the Petitions).

    With regard to the domestic like product, Petitioners do not offer a definition of the domestic like product distinct from the scope of the investigations. Based on our analysis of the information submitted on the record, we have determined that rebar, as defined in the scope, constitutes a single domestic like product and we have analyzed industry support in terms of that domestic like product.11

    11 For a discussion of the domestic like product analysis in this case, see Antidumping Duty Investigation Initiation Checklist: Steel Concrete Reinforcing Bar from Japan (Japan AD Initiation Checklist), at Attachment II, Analysis of Industry Support for the Antidumping and Countervailing Duty Petitions Covering Steel Concrete Reinforcing Bar from Japan, Taiwan, and the Republic of Turkey (Attachment II); Antidumping Duty Investigation Initiation Checklist: Steel Concrete Reinforcing Bar from Taiwan (Taiwan AD Initiation Checklist), at Attachment II; and Antidumping Duty Investigation Initiation Checklist: Steel Concrete Reinforcing Bar from the Republic of Turkey (Turkey AD Initiation Checklist), at Attachment II. These checklists are dated concurrently with this notice and on file electronically via ACCESS. Access to documents filed via ACCESS is also available in the Central Records Unit, Room B8024 of the main Department of Commerce building.

    In determining whether Petitioners have standing under section 732(c)(4)(A) of the Act, we considered the industry support data contained in the Petitions with reference to the domestic like product as defined in the “Scope of the Investigations,” in Appendix I of this notice. To establish industry support, Petitioners provided their 2015 shipments of the domestic like product, and compared their shipments to estimated total shipments of the domestic like product for the entire domestic industry.12 Because production data for the U.S. rebar industry for 2015 is not reasonably available to Petitioners and Petitioners have established that shipments are a reasonable proxy for production data,13 we have relied upon the shipment data provided by Petitioners for purposes of measuring industry support.

    12See Volume I of the Petitions, at 3 and Exhibits I-4 and I-31; see also General Issues Supplement, at 3-6 and Exhibits I-Supp-4 and I-Supp-7.

    13See General Issues Supplement, at 5 and Exhibits I-Supp-4 and I-Supp-5.

    Our review of the data provided in the Petitions, General Issues Supplement, and other information readily available to the Department indicates that Petitioners have established industry support.14 First, the Petitions established support from domestic producers and workers accounting for more than 50 percent of the total shipments 15 of the domestic like product and, as such, the Department is not required to take further action in order to evaluate industry support (e.g., polling).16 Second, the domestic producers and workers have met the statutory criteria for industry support under section 732(c)(4)(A)(i) of the Act because the domestic producers and workers who support the Petitions account for at least 25 percent of the total shipments of the domestic like product.17 Finally, the domestic producers and workers have met the statutory criteria for industry support under section 732(c)(4)(A)(ii) of the Act because the domestic producers and workers who support the Petitions account for more than 50 percent of the shipments of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the Petitions.18 Accordingly, the Department determines that the Petitions were filed on behalf of the domestic industry within the meaning of section 732(b)(1) of the Act.

    14See Japan AD Initiation Checklist, Taiwan AD Initiation Checklist, and Turkey AD Initiation Checklist, at Attachment II.

    15 As discussed above, Petitioners established that shipments are a reasonable proxy for production data. Section 351.203(e)(1) of the Department's regulations states “production levels may be established by reference to alternative data that the Secretary determines to be indicative of production levels.”

    16See section 732(c)(4)(D) of the Act; see also Japan AD Initiation Checklist, Taiwan AD Initiation Checklist, and Turkey AD Initiation Checklist, at Attachment II.

    17See Japan AD Initiation Checklist, Taiwan AD Initiation Checklist, and Turkey AD Initiation Checklist, at Attachment II.

    18Id.

    The Department finds that Petitioners filed the Petitions on behalf of the domestic industry because they are interested parties as defined in sections 771(9)(C) and (E) of the Act and they have demonstrated sufficient industry support with respect to the AD investigations that they are requesting the Department initiate.19

    19Id.

    Allegations and Evidence of Material Injury and Causation

    Petitioners allege that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise sold at less than normal value (NV). In addition, Petitioners allege that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.20

    20See General Issues Supplement, at 6-7 and Exhibit I-Supp-8; see also Volume I of the Petitions, at Exhibit I-23.

    Petitioners contend that the industry's injured condition is illustrated by reduced market share; underselling and price suppression or depression; lost sales and revenues; declines in production, capacity utilization, and U.S. shipments; negative impact on employment variables; and decline in financial performance.21 We have assessed the allegations and supporting evidence regarding material injury, threat of material injury, and causation, and we have determined that these allegations are properly supported by adequate evidence, and meet the statutory requirements for initiation.22

    21See Volume I of the Petitions, at 14, 18-48 and Exhibits I-5, I-8, I-20, and I-23 through I-59; see also General Issues Supplement, at 6-8 and Exhibits I-Supp-7 through I-Supp-10.

    22See Japan AD Initiation Checklist, at Attachment III, Analysis of Allegations and Evidence of Material Injury and Causation for the Antidumping and Countervailing Duty Petitions Covering Steel Concrete Reinforcing Bar from Japan, Taiwan, and the Republic of Turkey (Attachment III); see also Taiwan AD Initiation Checklist, at Attachment III; and Turkey AD Initiation Checklist, at Attachment III.

    Allegations of Sales at Less-Than-Fair Value

    The following is a description of the allegations of sales at less-than-fair value upon which the Department based its decision to initiate investigations of imports of rebar from Japan, Taiwan, and Turkey. The sources of data for the deductions and adjustments relating to U.S. price and NV are discussed in greater detail in the country-specific initiation checklists.

    Export Price

    For Japan, Petitioners based export price (EP) on quoted sales offers or transactions to customers in the United States for rebar produced in, and exported from, Japan.23 Where applicable, Petitioners made deductions from U.S. price for movement expenses consistent with the delivery terms.24 Petitioners also deducted from U.S. price brokerage and handling expenses.25

    23See Japan AD Initiation Checklist; see also Volume II of the Petitions, at 2-3 and Exhibit AD-JP-2.

    24See Japan AD Initation Checklist; see also Volume II of the Petitions, at 2-7 and Exhibit AD-JP-11; see also Japan Supplement, at Exhibit AD-JP-Supp-2.

    25Id.

    For Taiwan, and Turkey, Petitioners based EP on transaction-specific average unit values (AUVs) for shipments of rebar identified from each of these countries entered under the relevant Harmonized Tariff Schedule of the United States (HTSUS) subheading for one month during the POI into a specific port.26 Under this methodology,27 Petitioners linked data from an independent source to monthly U.S. port-specific import statistics (obtained from the ITC's Dataweb). Petitioners linked imports of rebar entered under the relevant HTSUS subheading to shipments from producers in the subject countries identified in the independent source data to ensure that the Dataweb statistics were only for subject merchandise.28 To calculate ex-factory prices, Petitioners made adjustments for foreign inland freight and brokerage and handling expenses; Petitioners made no adjustments to EP for international freight and insurance expenses, consistent with the manner in which the data is reported in Dataweb.29

    26See Taiwan AD Initiation Checklist, and Turkey AD Initiation Checklist.

    27Id.

    28Id.

    29Id.

    Normal Value Based on Constructed Value

    For Japan, Taiwan, and Turkey, Petitioners were unable to obtain information regarding home market prices and, therefore, calculated NV based on constructed value (CV).30 Pursuant to section 773(e) of the Act, CV consists of the cost of manufacturing (COM), selling, general and administrative (SG&A) expenses, financial expenses, packing expenses, and profit. Petitioners calculated COM based on a U.S. producer of rebar (U.S. surrogate's) experience, adjusted for known differences between producing in the United States and producing in the respective country (i.e., Japan, Taiwan, or Turkey), during the proposed POI.31 Using publicly-available data to account for price differences, Petitioners multiplied the surrogate raw material and packing usage quantities by the submitted value of the inputs used to manufacture rebar in each country.32 For Japan, Taiwan, and Turkey, labor and energy rates were derived from publicly-available sources multiplied by the U.S. surrogate's product-specific usage quantities.33 For Japan, Taiwan, and Turkey, to determine the factory overhead, SG&A, and financial rates, Petitioners relied on the audited financial statements of companies that were producers of identical merchandise operating in the respective subject country.34 Petitioners also relied on the audited financial statements of the same producers that they used for calculating the factory overhead, SG&A, and financial expenses to calculate the profit rate.35

    30See Japan AD Initiation Checklist, Taiwan AD Initiation Checklist, and Turkey AD Initiation Checklist. In accordance with section 505(a) of the Trade Preferences Extension Act of 2015, amending section 773(b)(2) of the Act, for all of the investigations, the Department will request information necessary to calculate the cost of production (COP) and CV to determine whether there are reasonable grounds to believe or suspect that sales of the foreign like product have been made at prices that represent less than the COP of the product. The Department will no longer require a COP allegation to conduct this analysis.

    31See Japan AD Initiation Checklist, Taiwan AD Initiation Checklist, and Turkey AD Initiation Checklist.

    32Id.

    33Id.

    34Id.

    35Id.

    Fair Value Comparisons

    Based on the data provided by Petitioners, there is reason to believe that imports of rebar from Japan, Taiwan, and Turkey, are being, or are likely to be, sold in the United States at less-than-fair value. Based on comparisons of EP to NV in accordance with sections 773(a) and (e) of the Act, the estimated dumping margin(s) for rebar are as follows: (1) Japan, 204.91 to 209.46 percent; 36 (2) Taiwan, 84.66 percent; 37 and (3) Turkey, 66.55 percent.38

    36See Japan Supplement, Exhibit AD-JP-Supp-3, and Japan AD Initiation Checklist.

    37See Taiwan Supplement, Exhibit AD-TW-Supp-6, and Taiwan AD Initiation Checklist.

    38See Turkey Supplement, Exhibit AD-TR-Supp-6, and Turkey AD Initiation Checklist.

    Initiation of Less-Than-Fair-Value Investigations

    Based upon the examination of the AD Petitions on rebar from Japan, Taiwan, and Turkey, we find that the Petitions meet the requirements of section 732 of the Act. Therefore, we are initiating AD investigations to determine whether imports of rebar for Japan, Taiwan, and Turkey, are being, or are likely to be, sold in the United States at less-than-fair value. In accordance with section 733(b)(1)(A) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determinations no later than 140 days after the date of this initiation.

    On June 29, 2015, the President of the United States signed into law the Trade Preferences Extension Act of 2015, which made numerous amendments to the AD and CVD law.39 The 2015 law does not specify dates of application for those amendments. On August 6, 2015, the Department published an interpretative rule, in which it announced the applicability dates for each amendment to the Act, except for amendments contained in section 771(7) of the Act, which relate to determinations of material injury by the ITC.40 The amendments to sections 771(15), 773, 776, and 782 of the Act are applicable to all determinations made on or after August 6, 2015, and, therefore, apply to these AD investigations.41

    39See Trade Preferences Extension Act of 2015, Public Law 114-27, 129 Stat. 362 (2015).

    40See Dates of Application of Amendments to the Antidumping and Countervailing Duty Laws Made by the Trade Preferences Extension Act of 2015, 80 FR 46793 (August 6, 2015) (Applicability Notice).

    41Id., at 46794-95. The 2015 amendments may be found at https://www.congress.gov/bill/114th-congress/house-bill/1295/text/pl.

    Respondent Selection

    Based on information from an independent source and other open source research, Petitioners identified 20 companies in Japan, 8 companies in Taiwan, and 35 companies in Turkey, as producers/exporters of rebar.42 Following standard practice in AD investigations involving market economy countries, in the event the Department determines that the number of companies is large and it cannot individually examine each company based upon the Department's resources, where appropriate, the Department intends to select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports under the appropriate HTSUS numbers listed with the “Scope of the Investigations,” in Appendix I, below. We also intend to release the CBP data under Administrative Protective Order (APO) to all parties with access to information protected by APO on the record within five business days of publication of this Federal Register notice. Comments regarding the CBP data and respondent selection should be submitted seven calendar days after the placement of the CBP data on the record of each respective investigation. Parties wishing to submit rebuttal comments should submit those comments five calendar days after the deadline for the initial comments.

    42See Volume I of the Petition, at 12-13 and Exhibit I-19.

    Comments for the above-referenced investigations must be filed electronically using ACCESS. An electronically-filed document must be received successfully in its entirety by the Department's electronic records system, ACCESS, by 5:00 p.m. ET by the dates noted above. We intend to finalize our decision regarding respondent selection within 20 days of publication of this notice.

    Distribution of Copies of the Petitions

    In accordance with section 732(b)(3)(A) of the Act and 19 CFR 351.202(f), copies of the public version of the Petitions have been provided to the governments of Japan, Taiwan, and Turkey via ACCESS. To the extent practicable, we will attempt to provide a copy of the public version of the Petitions to each exporter named in the Petitions, as provided under 19 CFR 351.203(c)(2).

    ITC Notification

    We will notify the ITC of our initiation, as required by section 732(d) of the Act.

    Preliminary Determinations by the ITC

    The ITC will preliminarily determine, within 45 days after the date on which the Petitions were filed, whether there is a reasonable indication that imports of rebar from Japan, Taiwan, and/or Turkey are materially injuring or threatening material injury to a U.S. industry.43 A negative ITC determination for any country will result in the investigation being terminated with respect to that country; 44 otherwise, these investigations will proceed according to statutory and regulatory time limits.

    43See section 733(a) of the Act.

    44Id.

    Submission of Factual Information

    Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the Department; and (v) evidence other than factual information described in (i)-(iv). Any party, when submitting factual information, must specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct. Time limits for the submission of factual information are addressed in 19 CFR 351.301, which provides specific time limits based on the type of factual information being submitted. Please review the regulations prior to submitting factual information in these investigations.

    Extensions of Time Limits

    Parties may request an extension of time limits before the expiration of a time limit established under Part 351, or as otherwise specified by the Secretary. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under Part 351 expires. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits. Review Extension of Time Limits; Final Rule, 78 FR 57790 (September 20, 2013), available at http://www.thefederalregister.org/fdsys/pkg/FR-2013-09-20/html/2013-22853.htm, prior to submitting factual information in this segment.

    Certification Requirements

    Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.45 Parties are hereby reminded that revised certification requirements are in effect for company/government officials, as well as their representatives. Investigations initiated on the basis of Petitions filed on or after August 16, 2013, and other segments of any AD or CVD proceedings initiated on or after August 16, 2013, should use the formats for the revised certifications provided at the end of the Final Rule. 46 The Department intends to reject factual submissions if the submitting party does not comply with applicable revised certification requirements.

    45See section 782(b) of the Act.

    46See Certification of Factual Information to Import Administration during Antidumping and Countervailing Duty Proceedings, 78 FR 42678 (July 17, 2013) (Final Rule); see also frequently asked questions regarding the Final Rule, available at http://enforcement.trade.gov/tlei/notices/factual_info_final_rule_FAQ_07172013.pdf.

    Notification to Interested Parties

    Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. On January 22, 2008, the Department published Antidumping and Countervailing Duty Proceedings: Documents Submission Procedures; APO Procedures, 73 FR 3634 (January 22, 2008). Parties wishing to participate in these investigations should ensure that they meet the requirements of these procedures (e.g., the filing of letters of appearance as discussed in 19 CFR 351.103(d)).

    This notice is issued and published pursuant to section 777(i) of the Act and 19 CFR 351.203(c).

    Dated: October 11, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance. Appendix I Scope of the Investigations

    The merchandise subject to these investigations is steel concrete reinforcing bar imported in either straight length or coil form (rebar) regardless of metallurgy, length, diameter, or grade or lack thereof. Subject merchandise includes deformed steel wire with bar markings (e.g., mill mark, size, or grade) and which has been subjected to an elongation test.

    The subject merchandise includes rebar that has been further processed in the subject country or a third country, including but not limited to cutting, grinding, galvanizing, painting, coating, or any other processing that would not otherwise remove the merchandise from the scope of the investigations if performed in the country of manufacture of the rebar.

    Specifically excluded are plain rounds (i.e., nondeformed or smooth rebar). Also excluded from the scope is deformed steel wire meeting ASTM A1064/A1064M with no bar markings (e.g., mill mark, size, or grade) and without being subject to an elongation test.

    At the time of the filing of the petition, there was an existing countervailing duty order on steel reinforcing bar from the Republic of Turkey. Steel Concrete Reinforcing Bar From the Republic of Turkey, 79 FR 65,926 (Dep't Commerce Nov. 6, 2014) (2014 Turkey CVD Order). The scope of this countervailing duty investigation with regard to rebar from Turkey covers only rebar produced and/or exported by those companies that are excluded from the 2014 Turkey CVD Order. At the time of the issuance of the 2014 Turkey CVD Order, Habas Sinai ve Tibbi Gazlar Istihsal Endustrisi A.S. was the only excluded Turkish rebar producer or exporter.

    The subject merchandise is classifiable in the Harmonized Tariff Schedule of the United States (HTSUS) primarily under item numbers 7213.10.0000, 7214.20.0000, and 7228.30.8010. The subject merchandise may also enter under other HTSUS numbers including 7215.90.1000, 7215.90.5000, 7221.00.0017, 7221.00.0018, 7221.00.0030, 7221.00.0045, 7222.11.0001, 7222.11.0057, 7222.11.0059, 7222.30.0001, 7227.20.0080, 7227.90.6030, 7227.90.6035, 7227.90.6040, 7228.20.1000, and 7228.60.6000.

    HTSUS numbers are provided for convenience and customs purposes; however, the written description of the scope remains dispositive.

    [FR Doc. 2016-25171 Filed 10-17-16; 8:45 a.m.] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration Application(s) for Duty-Free Entry of Scientific Instruments

    Pursuant to Section 6(c) of the Educational, Scientific and Cultural Materials Importation Act of 1966 (Pub. L. 89-651, as amended by Pub. L. 106-36; 80 Stat. 897; 15 CFR part 301), we invite comments on the question of whether instruments of equivalent scientific value, for the purposes for which the instruments shown below are intended to be used, are being manufactured in the United States.

    Comments must comply with 15 CFR 301.5(a)(3) and (4) of the regulations and be postmarked on or before November 7, 2016. Address written comments to Statutory Import Programs Staff, Room 3720, U.S. Department of Commerce, Washington, DC 20230. Applications may be examined between 8:30 a.m. and 5:00 p.m. at the U.S. Department of Commerce in Room 3720.

    Docket Number: 15-061. Applicant: Yale School of Medicine, 333 Cedar St., New Haven, CT 06510. Instrument: SuperK Extreme EXR-20 white light laser. Manufacturer: NKT Photonics, Denmark. Intended Use: The instrument will be used as an excitation sources for the study of intracellular processes and structures at super resolution. The experiments require a high power pulsed excitation source at a wavelength of 590 nm, and minimal after pulse tail and sub 100 ps pulse width. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: July 18, 2016.

    Docket Number: 16-002. Applicant: University of Massachusetts Medical School, 55 Lake Avenue North, Worcester, MA 01655. Instrument: Electron Microscope. Manufacturer: FEI Company, the Netherlands. Intended Use: The instrument will be used to understand the three-dimensional structure of purified proteins and protein complexes at the atomic level, and how this is related to their function. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: July 18, 2016.

    Docket Number: 16-004. Applicant: Purdue University, 315 N. Grant St., West Lafayette, IN 47907. Instrument: SGR YAG pulsed laser. Manufacturer: Beamtech Optronics, Co. LTD, China. Intended Use: The instrument will be used for pulsed laser annealing and nanostructure integrated laser shock peening, to improve the microstructure of thin film for better electrical and optical properties. Requirements for the experiment include three wave lengths (355nm, 532nm, 1064nm), pulse energy 2J, flat hat beam, and pulse duration tunable from 10ns to 25ns. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: July 18, 2016.

    Docket Number: 16-005. Applicant: Rutgers University, Administrative Services Bldg. I, Rm. 300, Plant Funds, 65 Davidson Road, Piscataway, NJ 08854-8076. Instrument: Electron Microscope. Manufacturer: FEI Company, the Netherlands. Intended Use: The instrument will be used to achieve sub-nanometer resolution structures of protein complexes, characterize interactions between various components of protein complexes and understand biological activities by imaging protein assemblies in cellular or physiologic conditions. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: July 14, 2016.

    Docket Number: 16-008. Applicant: California Institute of Technology, 1200 E. California Blvd., Pasadena, CA 91125. Instrument: Cryogenic Temperature Scanning Tunneling Microscope System. Manufacturer: Unisoku Co., LTd., Japan. Intended Use: The instrument will be used to investigate structural and electrical surface properties with atomic resolution at cryogenic temperatures (-459 Fahrenheit—0.4 K) and high magnetic fields, at which conditions materials can exhibit unusual quantum properties such as topological superconductivity and fractionalization of charge carriers. Experiments to be conducted with the instrument include mapping of the local electronic density of states of gated nanostructures by measuring current—voltage curves at different points, mapping of the electron spin structure using scanning tips made of magnetic materials, and probing the size of the energy gap in topological insulators and topological superconductors. For this type of research an instrument capable of performing scanning tunneling microscopy (STM) and atomic force microscopy (AFM) at cryogenic temperatures and high magnetic fields is essential. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: July 14, 2016.

    Docket Number: 16-010. Applicant: University of California, Riverside, 900 University Drive, Riverside, CA 92521. Instrument: Electron Microscope. Manufacturer: FEI Company, the Netherlands. Intended Use: The instrument will be used teaching and associated research, including materials science, earth science and life science, all of which rely on the characterization of morphology and structure at microscopic down to atomic scale of materials and biological tissues. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: July 18, 2016.

    Docket Number: 16-011. Applicant: Van Andel Research Institute, 333 Botswick Avenue NE., Grand Rapids, MI 49503. Instrument: Electron Microscope. Manufacturer: FEI Company, the Netherlands. Intended Use: The instrument will be used to computationally process images of protein complexes and apply averaging techniques to 3D models of isolated cellular components. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: June 21, 2016.

    Docket Number: 16-012. Applicant: Van Andel Research Institute, 333 Botswick Avenue NE., Grand Rapids, MI 49503. Instrument: Electron Microscope. Manufacturer: FEI, Co., the Netherlands. Intended Use: The instrument will be used to computationally process images of protein complexes and apply averaging techniques to 3D models of isolated cellular components. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: June 16, 2016.

    Docket Number: 16-013. Applicant: Van Andel Research Institute, 333 Botswick Avenue NE., Grand Rapids, MI 49503. Instrument: Electron Microscope. Manufacturer: FEI Company, Czech Republic. Intended Use: The instrument will be used to computationally process images of protein complexes and apply averaging techniques to calculate 3D models of isolated cellular components. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: July 15, 2016.

    Docket Number: 16-014. Applicant: Iowa State University, 3616 Administrative Services Bldg., Stange Road, Ames, Iowa 50011-3616. Instrument: Electron Microscope. Manufacturer: FEI Company, the Netherlands. Intended Use: The instrument will be used to study atom arrangement/motion in defects, interface, precipitate and their effect on property using high-resolution (scanning) electron microscopy, nanospectroscopy, electron diffraction, electron holography and Lorentz microscopy. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: July 14, 2016.

    Docket Number: 16-015. Applicant: Yale University, 2 Whitney Avenue, Suite 540, P.O. Box 208202, New Haven, CT 06520. Instrument: Electron Microscope. Manufacturer: FEI Company, the Netherlands. Intended Use: The instrument will be used to obtain atomic-resolution maps of macromolecular complexes, to obtain three-dimensional tomograms of cellular contents, and to observe the arrangements of organelles and macromolecular complexes that participate in cellular processes. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: July 18, 2016.

    Docket Number: 16-016. Applicant: State University of New York at Stony Brook, Research & Development Campus, Development Drive, Bldg. 17, Stony Brook, NY 117964-6000. Instrument: Cryo-Electron Microscope. Manufacturer: FEI Company, the Netherlands. Intended Use: The instrument will be used to image and visualize purified proteins, nucleic acid-protein complexes, and thin sections of biological materials such as cells or tissues by cryo-electron microscopy. Justification for Duty-Free Entry: There are no instruments of the same general category manufactured in the United States. Application accepted by Commissioner of Customs: August 24, 2016.

    Dated: October 11, 2016. Gregory W. Campbell, Director of Subsidies Enforcement, Enforcement and Compliance.
    [FR Doc. 2016-25173 Filed 10-17-16; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-471-807] Certain Uncoated Paper From Portugal: Initiation and Preliminary Results of Antidumping Duty Changed Circumstances Review AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (the “Department”) preliminarily determines that The Navigator Company, S.A. and Navigator Fine Paper, S.A. (collectively “Navigator”) is the successor in interest to Portucel, S.A. and Portucel Soporcel Fine Paper, S.A. (collectively “Portucel”) for purposes of the antidumping duty order on certain uncoated paper from Portugal and, as such, is entitled to Portucel's cash deposit rate with respect to entries of subject merchandise. Interested parties are invited to comment on these preliminary results.

    DATES:

    Effective October 18, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Carrie Bethea, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1491.

    SUPPLEMENTARY INFORMATION:

    Background

    The Department published the antidumping duty order for certain uncoated paper from Portugal in the Federal Register on March 3, 2016.1 In the underlying less than fair value investigation, the Department collapsed Portucel, S.A. and Portucel Soporcel Fine Paper, S.A. for purposes of antidumping treatment.2 On August 26, 2016, the Department received a request on behalf of Navigator for an expedited changed circumstance review (“CCR”) to establish Navigator as the successor-in-interest to Portucel for purposes of the antidumping duty order on certain uncoated paper from Portugal.3 We received no comments opposing Navigator's request.

    1See Certain Uncoated Paper from Australia, Brazil, Indonesia, the People's Republic of China, and Portugal: Amended Final Affirmative Antidumping Determinations for Brazil and Indonesia and Antidumping Duty Orders, 42 FR 11174 (March 3, 2016) (“Order”).

    2See Certain Uncoated Paper from Portugal: Preliminary Determination of Sales at Less Than Fair Value and Postponement of Final Determination, 80 FR 51777 (August 26, 2015) (unchanged in final results), Certain Uncoated Paper from Portugal: Final Determination of Sales at Less Than Fair Value and Final Negative Determination of Critical Circumstances, 81 FR 3105 (January 20, 2016).

    3 Letter to the Secretary from Navigator, regarding, “Certain Uncoated Paper from Portugal: Request for Changed Circumstances Review,” dated August 26, 2016 (“CCR Request”).

    Scope of the Order

    The merchandise covered by this order includes uncoated paper in sheet form; weighing at least 40 grams per square meter but not more than 150 grams per square meter; that either is a white paper with a GE brightness level 4 of 85 or higher or is a colored paper; whether or not surface-decorated, printed (except as described below), embossed, perforated, or punched; irrespective of the smoothness of the surface; and irrespective of dimensions (Certain Uncoated Paper).

    4 One of the key measurements of any grade of paper is brightness. Generally speaking, the brighter the paper the better the contrast between the paper and the ink. Brightness is measured using a GE Reflectance Scale, which measures the reflection of light off a grade of paper. One is the lowest reflection, or what would be given to a totally black grade, and 100 is the brightest measured grade. “Colored paper” as used in this scope definition means a paper with a hue other than white that reflects one of the primary colors of magenta, yellow, and cyan (red, yellow, and blue) or a combination of such primary colors.

    Certain Uncoated Paper includes (a) uncoated free sheet paper that meets this scope definition; (b) uncoated ground wood paper produced from bleached chemi-thermo-mechanical pulp (BCTMP) that meets this scope definition; and (c) any other uncoated paper that meets this scope definition regardless of the type of pulp used to produce the paper.

    Specifically excluded from the scope are (1) paper printed with final content of printed text or graphics and (2) lined paper products, typically school supplies, composed of paper that incorporates straight horizontal and/or vertical lines that would make the paper unsuitable for copying or printing purposes. For purposes of this scope definition, paper shall be considered “printed with final content” where at least one side of the sheet has printed text and/or graphics that cover at least five percent of the surface area of the entire sheet.

    The product is currently classified under Harmonized Tariff Schedule of the United States (HTSUS) categories 4802.56.1000, 4802.56.2000, 4802.56.3000, 4802.56.4000, 4802.56.6000, 4802.56.7020, 4802.56.7040, 4802.57.1000, 4802.57.2000, 4802.57.3000, and 4802.57.4000. Some imports of subject merchandise may also be classified under 4802.62.1000, 4802.62.2000, 4802.62.3000, 4802.62.5000, 4802.62.6020, 4802.62.6040, 4802.69.1000, 4802.69.2000, 4802.69.3000, 4811.90.8050 and 4811.90.9080. While HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the investigation is dispositive.

    Initiation of Changed Circumstances Review

    Pursuant to section 751(b)(1) of the Tariff Act of 1930, as amended (“the Act”) and 19 CFR 351.216(c)-(d), the Department will only conduct a changed circumstances review less than 24 months after the date of publication of the final determination with good cause and upon receipt of information concerning, or a request from an interested party for a review of, an antidumping duty finding which shows changed circumstances sufficient to warrant a review of the order.

    Navigator has shown that good cause exists to conduct a changed circumstance review because the name change will affect its import documentation before U.S. Customs and Border Protection (“CBP”), thus affecting CBP's treatment of its entries. The information submitted by Navigator claiming that Navigator is the successor-in-interest to Portucel also demonstrates changed circumstances sufficient to warrant a review. Therefore, in accordance with section 751(b)(1) of the Act and 19 CFR 351.216(c)-(d), the Department is initiating a changed circumstances review to determine whether Navigator is the successor-in-interest to Portucel.

    Preliminary Results

    The Department may issue the notice of initiation of the review and the preliminary results concurrently when it concludes that expedited action is warranted.5 We find that expedited action is warranted because we have the information necessary on the record to make a preliminary finding. Therefore, we are combining the notice of initiation and the notice of preliminary results in accordance with 19 CFR 351.221(c)(3)(ii).

    5 19 CFR 351.221(c)(3)(ii); see also Initiation and Preliminary Results of Antidumping Duty Changed Circumstances Review: Multilayered Wood Flooring from the People's Republic of China, 80 FR 7842 (Feb. 12, 2015); Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam: Initiation and Preliminary Results of Changed Circumstances Review, 77 FR 4993 (February 1, 2012).

    In determining whether one company is the successor to another for purposes of applying the antidumping duty (“AD”) law, the Department examines a number of factors including, but not limited to, changes in (1) management, (2) production facilities, (3) suppliers, and (4) customer base.6 While no one or several of these factors will necessarily provide a dispositive indication of succession, the Department will generally consider one company to be the successor to another company if its resulting operation is essentially the same as that of its predecessor.7 Thus, if the evidence demonstrates that, with respect to the production and sale of the subject merchandise, the new company operates as the same business entity as the prior company, the Department will assign the new company the cash deposit rate of its predecessor.8

    6See, e.g., Notice of Preliminary Results of Antidumping Duty Changed Circumstances Review: Polychloroprene Rubber from Japan, 69 FR 61796, 61797 (October 21, 2004).

    7Id.

    8See, e.g.,Certain Circular Welded Carbon Steel Pipes and Tubes from Taiwan: Initiation of Antidumping Duty Changed Circumstance Review, 70 FR 17063, 17064 (April 4, 2005); Fresh and Chilled Atlantic Salmon from Norway: Final Results of Changed Circumstances Administrative Review, 64 FR 9979, 9980 (March 1, 1999).

    In its August 26, 2016 submission, Navigator provided documentation demonstrating that Navigator is the successor in interest to Portucel in that no major changes occurred with respect to management, production process, customer base, or suppliers.9

    9See, generally, CCR Request.

    According to the information provided, no material changes in management,10 operations,11 or ownership 12 have occurred in the businesses as a result of the name change from Portucel to Navigator. Navigator's General Managers, Board of Directors, and shareholders have not materially changed from Portucel's following its name change.13 Navigator's production facilities and production of subject merchandise remain the same as Portucel.14 Navigator has maintained Portucel's business model as a vertically integrated producer such that there are no material changes in its suppliers.15 Navigator continues to export to the same sole customer in the United States as Portucel, thus there are no material changes between Portucel's and Navigator's customer bases.16

    10Id. at Attachment 2 and 4 (showing any changes in Board of Directors to be routine and unrelated to the successor-in-interest claim).

    11Id. at Attachment 1, 6, and 7.

    12Id. at Attachment 8; see also Certain Pasta from Turkey: Preliminary Results of Countervailing Duty Changed Circumstances Review, 74 FR 47225 (September 15, 2009) (unchanged in final) (“the types of changes that we normally consider to be significant {. . . does not include. . .} regular buying and selling of publicly owned shares held by a broad array of investors”).

    13 CCR Request at 3-4 and Attachments 2, 4, 6, and 7.

    14Id. at Attachments 1, 6, and 7.

    15Id. at Attachment 9.

    16Id. at Attachment 10 (showing Navigator's U.S. affiliate's customers for fiscal year 2015 and January through July of 2016).

    Should our final results remain the same as these preliminary results, effective the date of publication of the final results, we will instruct U.S. Customs and Border Protection to assign entries of subject merchandise exported by Navigator the antidumping duty cash-deposit rate applicable to Portucel.

    Public Comment

    Interested parties are invited to comment on these preliminary results. Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than 14 days after the date of publication of this notice, and rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.17 Pursuant to 19 CFR 351.309(c)(2) and (d)(2), parties who submit case briefs or rebuttal briefs in this proceeding are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.

    17See 19 CFR 351.309.

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce. All documents must be filed electronically using ACCESS. An electronically-filed request must be received successfully in its entirety by ACCESS by 5:00 p.m. Eastern Standard Time, within 14 days after the date of publication of this notice.18 Requests should contain the party's name, address, and telephone number, the number of participants, and a list of the issues to be discussed. If a request for a hearing is made, the Department intends to hold the hearing at the U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, at a time and date to be determined.

    18See 19 CFR 351.310(c).

    Consistent with 19 CFR 351.216(e), we will issue the final results of this changed circumstances review no later than 270 days after the date on which this review was initiated or within 45 days of publication of these preliminary results if all parties agree to our preliminary finding.

    We are issuing and publishing this initiation and preliminary