Federal Register Vol. 81, No.203,

Table of Contents I. Public Participation II. Background A. Purpose B. Legal Authority C. Amendments to the DHS Regulations To Establish the Electronic Visa Update System 1. Enrollment in EVUS 2. Notification of Compliance 3. EVUS in the Context of Travel to the United States 4. Validity Period of Notification of Compliance 5. Schedule for EVUS Enrollment and Re-Enrollment a. Initial Enrollment b. EVUS Re-Enrollment Prior to Travel to the United States 6. Required EVUS Data Elements 7. Events Requiring EVUS Re-Enrollment 8. Noncompliance, Expiration of Notification of Compliance, and Change in EVUS Status Resulting in Rescission of Notification of Compliance D. Other Amendments to the DHS Regulations to Reference EVUS E. Compliance Dates and Early Enrollment Period for EVUS III. Statutory and Regulatory Requirements A. Administrative Procedure Act B. Congressional Review Act C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act of 1995 E. Executive Order 13563 (Improving Regulation and Regulatory Review) and Executive Order 12866 (Regulatory Planning and Review) 1. Purpose of Rule 2. Population Affected by Rule 3. Costs of Rule 4. Benefits of Rule 5. Net Impact of Rule F. Executive Order 13132 G. Executive Order 12988 Civil Justice Reform H. Paperwork Reduction Act I. Privacy List of Subjects Amendments to the Regulations I. Public Participation

Interested persons may submit comments on this rulemaking by submitting written data, views, or arguments on all aspects of this final rule. Based on the comments received, DHS may revise this rule in the future.

Congress has conferred upon the Secretary of Homeland Security the authority to establish reasonable conditions on the entry of nonimmigrant aliens into the United States. The Department of Homeland Security (“DHS”), for example, may, by regulation, set conditions for an alien's admission as a nonimmigrant, see Immigration and Nationality Act (“INA”) 214(a)(1), 8 U.S.C. 1184(a)(1), and, more generally, establish reasonable regulations governing aliens' entry or admission into and departure from the United States, see INA 215(a)(1), 8 U.S.C. 1185(a)(1).1 See also INA 103(a)(1), (a)(3), 8 U.S.C. 1103(a)(1), (a)(3); 6 U.S.C. 202(4).

Every alien applying for admission to the United States as a nonimmigrant must establish that he or she is admissible to the United States. See INA 235(b)(2)(A), 291, 8 U.S.C. 1225(b)(2)(A), 1361; 8 CFR 214.1(a)(3), 235.1(f), 235.3. Upon application for admission, the alien must present a valid passport and valid visa unless either or both document requirements have been waived. See INA 212(a)(7)(B), 8 U.S.C. 1182(a)(7)(B); 8 CFR 212.1; see also INA 217, 8 U.S.C. 1187; 8 CFR 217. Nonimmigrant aliens who need a visa to travel to and apply for admission to the United States may be eligible for one of 20 primary nonimmigrant classifications, depending on their specific purposes and qualifications. See INA 101(a)(15), 8 U.S.C. 1101(a)(15) (defining nonimmigrant classifications); see also U.S. Department of State, Bureau of Consular Affairs, “Directory of Visa Categories” (listing visa categories).2 The burden of establishing admissibility and other eligibility to enter the United States lies with the applicant for admission. See, e.g., INA 291, 8 U.S.C. 1361; 8 CFR 235.1(f).

The nonimmigrant visa application process generally requires the alien to fill out an application, pay a visa application fee, and appear for an interview before a consular officer at a U.S. embassy or consulate. Every visa applicant undergoes extensive security checks before a visa is issued. At the U.S. embassy or consulate, officials review the alien's application, collect the applicant's fingerprints, and check the applicant's name against the Department of State's (“DOS”) Consular Lookout and Support System (CLASS) as well as various other government watchlists. A consular officer reviews the name check results and determines whether additional security checks are required. The consular officer then generally interviews the visa applicant and reviews his or her application and supporting documents.

When all required processing is completed, and if the alien is found eligible, the consular officer issues a nonimmigrant visa to the alien. The validity period of a nonimmigrant visa varies by category and the country that issues the nonimmigrant alien's passport.3 When an alien's visa validity period expires, the alien will need to renew his or her visa in order to travel to the United States. The process is generally the same whether a person is applying for a visa for the first time or renewing an expired visa. This means that to renew a visa the alien must submit a new application, which requires updated information, pay the visa application fee, and undergo another interview by consular officials, unless the interview is waived.4 The information updates provided through the visa re-application process include basic biographical and eligibility elements that can change over time (e.g., address, name, employment, criminal history).

Visa validity periods can vary considerably, and some visas are valid for extended periods of up to ten years, and often for multiple entries. Frequent travelers to the United States who hold visas with short validity periods have to reapply more frequently than those who hold visas with longer validity periods. While visas with a longer validity period provide an opportunity for individuals to travel to the United States with greater ease, they do not enable the U.S. Government to receive regularly updated biographic and other information from repeat visitors who travel to the United States multiple times over the span of the visa. As such, aliens traveling on these visas with longer validity periods are screened using traveler information that is not as recent as for aliens who must obtain visas more frequently.

Because changes to biographical and eligibility elements could impact whether an individual may be admissible to the United States, it would be beneficial to have a mechanism for obtaining this updated information in advance of the individual's travel to the United States when the Secretary, in consultation with the Secretary of State, determines that it is warranted with respect to a given country and nonimmigrant visa category. Having a means for regularly collecting updated information, before the alien embarks on travel to the United States and without requiring aliens to apply for a visa on a more frequent basis, would be valuable in contributing to a robust traveler screening and verification process and would cut down on the number of visa holders who are found inadmissible at ports of entry.5

Given these concerns and considerations, DHS has developed the Electronic Visa Update System (“EVUS”), which provides a mechanism through which information updates can be obtained from nonimmigrant aliens who hold a passport issued by an identified country containing a U.S. nonimmigrant visa of a designated category. EVUS will provide for greater efficiencies in the screening of international travelers by allowing DHS to identify subjects of potential interest before they depart for the United States, thereby increasing security and reducing traveler delays upon arrival at U.S. ports of entry. EVUS will aid DHS in facilitating legitimate travel while also ensuring public safety and national security.

In this final rule, DHS is amending its regulations to establish EVUS. In a parallel rule, “Visa Information Update Requirements under the Electronic Visa Update System (EVUS)” (RIN 1400-AD93) (hereinafter “DOS's EVUS Rule”), also published in this Federal Register, DOS is amending its regulations to provide for the automatic provisional revocation of visas held by nonimmigrant aliens subject to the EVUS requirements for failure to comply with those requirements.

DHS and DOS anticipate that EVUS may eventually be expanded to include a number of countries and visa categories. However, as announced in a separate notice being published in this issue of the Federal Register, the program will initially be limited to nonimmigrant aliens who hold unrestricted, maximum validity B-1 (business visitor), B-2 (visitor for pleasure), or combination B-1/B-2 visas, which are generally valid for 10 years,6 contained in a passport issued by the People's Republic of China (“PRC”).7

DHS and DOS are establishing EVUS primarily under the authorities granted in INA sections 103 (8 U.S.C. 1103), 214 (8 U.S.C. 1184), 215 (8 U.S.C. 1185), and 221 (8 U.S.C. 1201); and sections 402(4) and 428(b) of the Homeland Security Act (“HSA”), 6 U.S.C. 202(4), 236(b). Section 221(a)(1)(B) of the INA authorizes DOS to issue nonimmigrant visas to foreign nationals. Section 221(c) provides that “[a] nonimmigrant visa shall be valid for such periods as shall be by regulations prescribed,” and section 221(i) authorizes the Secretary of State to revoke visas at any time in his or her discretion. See also 22 CFR 41.122. Section 214(a)(1) of the INA authorizes DHS to establish by regulation conditions for a nonimmigrant alien's admission to the United States, 8 U.S.C. 1184(a)(1); and section 215(a)(1) provides DHS with authority to set reasonable rules restricting aliens' entry into and departure from the United States.8 8 U.S.C. 1185(a)(1). Section 103(a) of the INA authorizes the Secretary of Homeland Security to administer and enforce the INA and other laws relating to the immigration and naturalization of aliens, and to establish such regulations as he deems necessary for carrying out his authority. 8 U.S.C. 1103(a). Sections 402(4) and 428(b) of the HSA generally confers upon the Secretary the authority to establish and administer rules governing the granting of visas. 6 U.S.C. 202(4), 236(b).

These broad authorities allow DHS to set conditions for admission or entry into the United States and DOS to revoke visas subject to the fulfillment of these conditions. Together, these authorities allow DHS to establish an electronic visa information update system to collect periodic biographic and other updates and for DOS to provisionally revoke a nonimmigrant alien's visa for failure to meet DHS's conditions for admission or entry as outlined in the EVUS regulations set forth in this final rule and the companion DOS rulemaking.

Through the issuance of these regulations outlined below, DHS is conditioning the admission or entry of nonimmigrant aliens who hold a passport issued by an identified country containing a U.S. nonimmigrant visa of a designated category on compliance with EVUS. Through the issuance of DOS's rule on EVUS, as specified in 22 CFR 41.122(b)(3), failure to comply with this condition triggers the automatic provisional revocation of the regulated individual's visa, which will prevent travel to the United States on that visa. Once the visa holder successfully enrolls in EVUS, the provisional revocation will be automatically reversed and the visa will be valid for travel to the United States. See DOS's EVUS Rule.

This rule amends 8 CFR by renaming part 215 “Controls of Aliens Departing from the United States; Electronic Visa Update System,” placing the existing §§ 215.1 through 215.9 into a subpart A entitled “Controls of Aliens Departing from the United States” and adding new sections in a subpart B, entitled “Electronic Visa Update System.” New subpart B describes the purpose of EVUS, who it applies to, and its requirements. It also contains definitions that apply throughout that subpart.

As provided in part 215, subpart B, EVUS is an online information update system that requires nonimmigrant aliens who hold a passport issued by an identified country containing a U.S. nonimmigrant visa of a designated category to provide information updates through periodic EVUS enrollment. The Secretary will identify countries (“EVUS countries”) whose passport holders will be subject to the EVUS regulations and designate applicable visa categories. This regulation would potentially apply to both single and multiple use visas. Notice of identified countries and designated visa categories will be published in the Federal Register. A nonimmigrant alien who holds a passport issued by an EVUS country containing a U.S. nonimmigrant visa of a designated category is referred to in part 215, subpart B, as a “covered alien.” Each covered alien must comply with EVUS in order to ensure the continued validity of his or her visa. A covered alien will not be allowed to board an air or sea carrier destined for the United States unless he or she complies with EVUS. Failure to enroll in EVUS according to the regulations will result in the automatic provisional revocation of the individual's visa pursuant to DOS's regulations in 22 CFR 41.122(b)(3). See DOS's EVUS Rule.

To enroll in EVUS, the covered alien must go online to www.EVUS.gov and provide truthful, accurate, and complete responses to all of the required questions. At this time, the EVUS enrollment may be completed by the covered alien or by a third party, such as a friend, relative, or travel industry professional, at the direction of the covered alien. The third party may submit the required information on the alien's behalf, although the alien is responsible for the truthfulness and accuracy of all information submitted.

After the enrollment information is submitted, the submitter will receive an electronic status message on the EVUS enrollment Web site stating “enrolled,” “pending,” “unsuccessful,” or “The State Department has revoked your visa.” The U.S. Customs and Border Protection (“CBP”) anticipates that each EVUS enrollment attempt will be adjudicated within 72 hours of submission, although most results will be received shortly after submission. An “enrolled” message indicates that the submission was successful and that the covered alien has a valid notification of compliance. For more details, see the section below, “Notification of Compliance.” If a “pending” message is received, the alien will need to return to the Web site at a later time to verify successful enrollment.

In some circumstances, the submitter may receive an “unsuccessful” message. This may occur for reasons including, but not limited to, the alien's failure to provide adequate responses to the EVUS questions, the alien's attempt to use an invalid passport or visa, such as an expired document or one reported lost or stolen, or irreconcilable errors discovered relating to the information the alien provided as part of an attempted EVUS enrollment. An unsuccessful EVUS enrollment after November 29, 2016 means that the covered alien's visa will be automatically provisionally revoked. An unsuccessful enrollment does not cause the underlying visa to be permanently revoked. A covered alien may reattempt enrollment any number of times, subsequent to receiving an “unsuccessful” message.

If the submitter receives a message stating that “The State Department has revoked your visa,” the submitter will not be permitted to travel to the United States on that visa until a new visa application has been submitted to DOS, a new visa has been issued, and the submitter has successfully enrolled in EVUS based on his or her new visa.

Upon successful enrollment in EVUS, CBP will issue a notification of compliance to the covered alien. In most cases, this notification of compliance will be issued immediately, appearing on the next page of the EVUS Web site after submission of the EVUS enrollment information. CBP will not send an email or letter to the alien notifying them of their enrollment status. It is the alien's responsibility to verify whether he or she has a valid notification of compliance. The alien can do this by returning to the EVUS Web site and following the instructions provided there.

The notification of compliance is a positive determination that the individual's visa is not automatically provisionally revoked and is considered valid for travel to the United States as of the time of the notification. See DOS's EVUS Rule; see also 22 CFR 41.122(b)(3).

As explained in the section below, “Duration of Notification of Compliance,” as a general rule, a notification of compliance is valid for a period of two years. For immigration purposes, a covered alien may travel to the United States repeatedly using the same notification of compliance, as long as the notification of compliance and the underlying visa remain valid.

When a covered alien seeks to board a commercial aircraft or vessel carrier for travel to a U.S. air or sea port of entry, the carrier will verify that the traveler has a valid notification of compliance before allowing the alien to board. When a covered alien arrives at a U.S. land port of entry, the CBP officer at the port of entry will verify that the traveler has a valid notification of compliance before conducting further assessment on the admissibility of the traveler.

A notification of compliance only allows a covered alien to board a conveyance for travel to a U.S. air or sea port of entry, or to apply for admission at a land port of entry. It does not restrict, limit, or otherwise affect the authority of CBP officers to determine an alien's admissibility to the United States during inspection at a port of entry or the respective authorities of DHS and DOS to refuse or revoke a nonimmigrant visa.

As a general rule, a notification of compliance will be valid for a period of two years. If a covered alien's passport or visa will expire in less than two years from the date the notification of compliance is issued, the notification will be valid only until the date of expiration of the passport or visa, whichever is sooner. Individuals who have successfully enrolled in EVUS may return to the EVUS Web site at any time to verify their EVUS status and notification of compliance expiration date.

The Secretary, in consultation with the Secretary of State, may increase or decrease the notification of compliance validity period for any EVUS country. Any changes to the validity period will be done through rulemaking. The EVUS Web site will also be updated to reflect the specific duration of notification of compliance validity periods for each EVUS country.

If a covered alien does not re-enroll in EVUS before his or her notification of compliance expires, his or her visa will be automatically provisionally revoked and the alien may not travel to the United States on that visa unless or until the alien re-enrolls in EVUS and obtains a new notification of compliance. Furthermore, a notification of compliance is not valid unless the alien's passport and designated visa are also valid.

As explained below in more detail, EVUS requires each covered alien to initially enroll after receiving his or her designated visa and to re-enroll in the context of travel if the initial or an earlier notification of compliance is no longer valid.

Following are the requirements for initial enrollment in EVUS. As explained below, as of November 29, 2016, no covered alien will be permitted to travel to the United States on a visa subject to EVUS, without a valid notification of compliance. Any covered alien who received his or her visa of a designated category prior to November 29, 2016, must initially enroll in EVUS by December 14, 2016, unless the alien intends to travel to the United States before that date. In such case, a covered alien intending to arrive at an air or sea port of entry must have a notification of compliance that is valid prior to boarding a carrier destined for travel to the United States, and an alien intending to arrive at a land port of entry must have a notification of compliance that is valid prior to application for admission.

In contrast, any covered alien who receives his or her visa of a designated category on or after November 29, 2016 must initially enroll in EVUS upon receipt of his or her visa. Enrollment upon receipt of the visa is necessary because, based on CBP's data on crossing history and visa issuance, most visitors to the United States travel within six months of visa issuance. To alleviate the reporting burden, EVUS will pre-populate the data elements that are duplicated on the visa application for recent visa issuances

Failure to initially enroll in EVUS as described above will result in the automatic provisional revocation of the covered alien's visa. The alien will not be authorized to travel to the United States on that visa unless or until the alien enrolls in EVUS and obtains a notification of compliance.

A covered alien must have a valid notification of compliance in order to travel to the United States on his or her visa of a designated category. To comply with this requirement, the individual must re-enroll in EVUS if his or her initial or most recent notification of compliance has expired, or will expire, prior to the following timeframes. A covered alien intending to arrive at an air or sea port of entry must have a notification of compliance that is valid prior to boarding a carrier destined for travel to the United States and that will remain valid through the date when the alien will arrive at the port of entry. A covered alien intending to arrive at a land port of entry must have a notification of compliance that is valid through the date of the alien's application for admission into the United States.

A covered alien may travel to the United States repeatedly using the same notification of compliance, as long as it remains valid through the timeframe described above and the underlying visa remains valid. If a covered alien needs a new notification of compliance in order to meet the relevant timeframe, DHS recommends that he or she re-enroll in EVUS at least 72 hours in advance of his or her intended departure to the United States.

The information required for EVUS enrollment is information that DHS, after consultation with DOS, has deemed necessary to evaluate whether a covered alien's travel to the United States poses a law enforcement or security risk. It includes biographical data such as name, birth date, and passport information, as well as travel information such as travel details and the alien's contact information in the United States. Covered aliens must also answer eligibility questions regarding, for example: Infection with communicable diseases of public health significance, existence of arrests or convictions for certain crimes, and past history of visa or admission denial.

The EVUS enrollment questions will be available in multiple languages, including English and the official language(s) of the covered alien's EVUS country. Although the covered alien must provide responses to most of the data elements in English, some of the information, such as the alien's name and address, can or must also be provided in the official language(s) of the alien's EVUS country.

The information submitted by the alien will be checked by DHS against all appropriate databases, including, but not limited to, lost and stolen passport databases and appropriate watchlists.

Covered aliens must re-enroll in EVUS and obtain a new notification of compliance if any of the following occur:

(a) The alien is issued a new passport or new nonimmigrant visa of a designated category;

(b) The alien changes his or her name;

(c) The alien changes his or her gender;

(d) There is any change to the alien's country of citizenship or nationality, including becoming a dual national; or

(e) The circumstances underlying the alien's previous responses to any of the EVUS enrollment questions requiring a “yes” or “no” response (eligibility questions) have changed.

An individual subject to the EVUS requirements must take affirmative actions to ensure and maintain the validity of his or her visa, pursuant to 22 CFR 41.122(b)(3). Failure to initially enroll in EVUS as described above will result in the automatic provisional revocation of the covered alien's visa. Furthermore, once a covered alien's notification of compliance has expired, his or her visa will be automatically provisionally revoked. In order to prevent the automatic provisional revocation of his or her visa, or to re-instate the validity of the visa after it has been provisionally revoked in these circumstances, the alien must successfully enroll or re-enroll in EVUS and obtain a valid notification of compliance.

In the event that a covered alien's EVUS enrollment is unsuccessful, his or her visa will also be automatically provisionally revoked. Under these circumstances, the alien may re-attempt enrollment or contact CBP for further guidance. Additionally, in the event that irreconcilable errors are discovered after the issuance of a notification of compliance, or other circumstances occur, such as a change in the validity period of the notification of compliance, CBP may rescind the notification of compliance.9 If a covered alien's notification of compliance is rescinded, his or her visa will be automatically provisionally revoked. In this circumstance, the alien may re-attempt enrollment or contact CBP for further guidance.

For more information on the automatic provisional revocation of visas in the context of EVUS, please see DOS's EVUS rule.

In establishing EVUS, several other sections of the DHS regulations must be amended to reference the new part 215, subpart B, of title 8 of the Code of Federal Regulations (“CFR”). Section 212.1 (“Documentary Requirements for Nonimmigrants”) is being revised to specify that when presenting documents for admission, the nonimmigrant alien's visa must meet the requirements of part 215, subpart B, if applicable. Section 212.1 is also being revised to remove the phrase “valid for the period set forth in section 212(a)(26) of this Act” as a descriptor of the passport an alien must present upon application for admission. That section of the INA no longer exists, making the reference obsolete. Section 214.1(a)(3) (“Requirements for Admission, Extension, and Maintenance of Status”) is being revised to note that an alien's admission to the United States as a nonimmigrant is now conditioned on compliance with part 215, subpart B, if applicable.

Lastly, § 273.3, regarding screening procedures, is also being revised to reflect EVUS requirements. Section 273.3 lists the screening procedures that owners, operators, or agents of carriers which transport passengers to the United States must follow to be eligible to apply for a reduction, refund, or waiver of fines imposed under section 273 of the INA, 8 U.S.C. 1323, for bringing aliens to the United States without the required travel documents. Section 273.3(b)(1) is being revised to add a new paragraph that specifies that carrier personnel, when screening passengers prior to boarding, should ensure that covered aliens have complied with EVUS as appropriate. Additionally, a new § 273.3(b)(4) is being added to address the procedures that carriers should follow to ensure that a covered alien has a valid notification of compliance before allowing him or her to board. This provision specifies that carriers should transmit the visa number of any passenger who requires a visa. The carrier should transmit this information using the Advance Passenger Information System (“APIS”).10 CBP will then use the visa number to ascertain whether the alien requires a notification of compliance with EVUS and if so, whether the alien has a valid notification of compliance. CBP will relay this information back to the carrier, and the carrier should use this information in determining whether to board the passenger.

As provided in § 215.24(c), covered aliens must initially enroll in EVUS as early as November 29, 2016, depending on the date on which the alien received his or her visa of a designated category and on his or her specific plans to travel to the United States. As of November 29, 2016, no covered alien will be authorized to travel to the United States on his or her visa of a designated category unless or until the alien enrolls in EVUS and obtains a notification of compliance.

As of the effective date of this rule, CBP will allow covered aliens to voluntarily enroll in EVUS prior to the mandatory compliance dates. This will allow covered aliens to familiarize themselves with the online tool and to meet the update requirements associated with EVUS well in advance of the mandatory compliance dates. A notification of compliance received during the early enrollment period will generally be valid for two years from the date of issuance, subject to the same limitations as notifications of compliance received after the mandatory compliance dates as provided in § 215.24(b).

The compliance date for the new requirements set forth in § 273.3, regarding carriers' screening procedures, is November 29, 2016.

This final rule is excluded from the rulemaking provisions of 5 U.S.C. 553 as a foreign affairs function of the United States because it advances the President's foreign policy goals regarding the issuance of visas, involves a diplomatic arrangement with another country regarding reciprocal changes to temporary visitor for business and pleasure, student, and exchange visitor visas, and directly involves relationships between the United States and its alien visitors. See 5 U.S.C. 553(a)(1). This determination was reached after consultation with DOS, which is also asserting the foreign affairs function exception in their parallel rule. Accordingly, DHS is not required to provide public notice and an opportunity to comment before implementing the requirements under this final rule.

Under the Congressional Review Act, a rule that is likely to result in an annual effect on the U.S. economy of $100,000,000 or more is considered a major rule. See 5 U.S.C. 804. Generally, the effective date of a major rule must be the later of these two dates: 60 days after publication in the Federal Register, or 60 days after delivery of the report to Congress. See 5 U.S.C. 801(a)(3). DHS has concluded in section III.E that this rule is likely to result in an annual effect on the U.S. economy of $100,000,000 or more. Therefore, it meets the criteria for a major rule. However, as provided in 5 U.S.C. 808, notwithstanding section 801, any rule which an agency for good cause finds (and incorporates the finding and a brief statement or reasons therefor) that notice and public procedure thereon are impractical, unnecessary, or contrary to the public interest, shall take effect at such time as the agency promulgating the rule determines. As discussed below, DHS finds for good cause that notice and public procedure thereon are impractical and contrary to the public interest.

This rule improves the security of issuing certain visas with longer validity periods to nonimmigrant aliens who hold a passport issued by an identified country. By requiring covered aliens to provide regular updated biographic and other information, DHS is better positioned to obtain updated information from these individuals and to screen them before they embark on travel to the United States. Implementation of this rule as soon as possible is necessary to protect the national security of the United States and to prevent potential wrongdoers from exploiting visas with longer validity periods when they are issued to nonimmigrant aliens who hold a passport issued by a country identified by the Secretary. Therefore, DHS finds for good cause that notice and public comment are impractical and contrary to the public interest. Accordingly, the effective date pursuant to 5 U.S.C. 808 may be the date the agency determines and DHS has determined that the rule will take effect immediately upon publication, but the compliance date is November 29, 2016, or as set forth in section 215.24(c).

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

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), enacted as Public Law 104-4 on March 22, 1995, requires each Federal agency, to the extent permitted by law, to prepare a written assessment of the effects of any Federal mandate in a proposed or final agency rule 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. Section 204(a) of the UMRA, 2 U.S.C. 1534(a), requires the Federal agency to develop an effective process to permit timely input by elected officers (or their designees) of State, local, and tribal governments on a proposed “significant intergovernmental mandate.” A “significant intergovernmental mandate” under the UMRA is any provision in a Federal agency regulation that will impose an enforceable duty upon State, local, and tribal governments, in the aggregate, of $100,000,000 (adjusted annually for inflation) in any one year. Section 203 of the UMRA, 2 U.S.C. 1533, which supplements section 204(a), provides that, before establishing any regulatory requirements that might significantly or uniquely affect small governments, the agency shall have developed a plan that, among other things, provides for notice to potentially affected small governments, if any, and for a meaningful and timely opportunity to provide input in the development of regulatory proposals. This rule would not impose a significant cost or uniquely affect small governments. The rule does have an effect on the private sector of $100,000,000 or more. This impact is discussed in section III.E. entitled “Executive Order 13563 and Executive Order 12866.”

Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Rules involving the foreign affairs function of the United States are exempt from the requirements of Executive Order 12866. As discussed above, EVUS advances the President's foreign policy goals regarding the issuance of visas and directly involves relationships between the United States and its alien visitors, and as such, DHS is of the opinion that this rule is exempt from the requirements of Executive Orders 13563 and 12866. However, DHS has nevertheless reviewed this rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Orders 13563 and 12866. DHS has prepared an economic analysis of the potential impacts of this final rule for public awareness. A summary of the analysis is presented below. The complete analysis can be found in the public docket for this rulemaking at www.regulations.gov.

Visa validity periods can vary considerably, and some visas are valid for extended periods of up to ten years, and often for multiple entries. Although these longer-term visas allow individuals to travel repeatedly to the United States with greater ease and at lower cost, they do not enable the U.S. Government to receive regular information about the travelers that could impact whether they are admissible to the United States over the entire span of the visa. Because changes to biographical and eligibility elements could impact whether an individual may be admissible to the United States, it would be beneficial to have a mechanism for obtaining this updated information in advance of the individual's travel to the United States when the Secretary, in consultation with the Secretary of State, determines that it is warranted with respect to a given country and nonimmigrant visa category. To maintain the needed levels of security when granting longer-term visas, this rule and a corresponding DOS rule will establish EVUS, an electronic mechanism for collecting biographical and other information from nonimmigrant aliens who hold a passport issued by an identified country containing a U.S. nonimmigrant visa of a designated category. Nonimmigrant aliens subject to these regulations (“covered aliens”) must periodically submit up-to-date biographical and other information through an EVUS enrollment request and receive an electronic notification of compliance indicating successful enrollment in advance of travel or admission to the United States. Failure to comply with EVUS will result in the automatic provisional revocation of the covered alien's visa, rendering the covered alien inadmissible to the United States on that visa and barring travel (by air and sea) on that visa until certain requirements are met. Air and sea carriers that offer travel to the United States will be responsible for verifying the EVUS compliance statuses of covered aliens, a condition of visa validity and admissibility, prior to boarding. CBP will continually screen covered aliens with EVUS notifications of compliance, thus providing more frequent enhanced traveler screening than short-term visas provide. This continual screening will ensure that aliens continue to meet U.S. security and admission requirements throughout the validity period of their EVUS notification of compliance and visa.

CBP and DOS anticipate that EVUS may eventually be expanded to include a number of countries and nonimmigrant visa categories. However, as announced in the notice being published in this issue of the Federal Register, the program will initially be limited to nonimmigrant aliens holding unrestricted, maximum validity B-1 (business visitor), B-2 (visitor for pleasure), or combination B-1/B-2 visas contained in a passport issued by the People's Republic of China. The following regulatory impact analysis summary and its corresponding full analysis present the costs and benefits of EVUS in two ways: (1) On a per-alien and per-carrier basis and (2) on an aggregate basis for the population of covered aliens initially required to enroll in EVUS—nonimmigrant aliens holding unrestricted, maximum validity B-1, B-2, or B-1/B-2 nonimmigrant visas contained in a passport issued by the PRC and who seek travel to the United States. When analyzing these impacts of the rule, CBP does so against a baseline in which DOS issues one-year B-1, B-2, and B-1/B-2 visas. CBP analyzes the impact of EVUS on a one-year basis because the United States and the PRC agreed to longer-length visa issuances on the condition of EVUS's forthcoming implementation. To the extent that DHS/CBP and DOS expand EVUS to other countries and visa categories, the impacts of EVUS outlined in this analysis would be higher. CBP also anticipates that currently proposed U.S. legislation establishing an $8.00 EVUS fee will pass in FY 2017.11 12 Such fee legislation would require covered aliens to pay an $8.00 EVUS fee per enrollment request, while allowing CBP to cover its costs of providing and administering EVUS. CBP includes the EVUS fee revenue in this analysis as a proxy for CBP's expected costs of setting up and administering EVUS.

This EVUS rule will impact covered aliens, air and sea carriers, CBP, and the public.13 Due to a myriad of factors that affect travel, CBP used three different projection methods to estimate the population of covered aliens initially affected by this rule—PRC B-1, B-2, and B-1/B-2 visa holders—over a 10-year period of analysis spanning from fiscal years (FYs) 2017 to 2026. Under CBP's primary estimation method, EVUS enrollment requests will measure 56.9 million during the period of analysis, with 56.9 million successful enrollments and about 2,100 unsuccessful enrollments (see Table 1).

This final rule incorporates by reference into 10 CFR part 430 specific sections of the following industry standards:

For a further discussion of these standards, see section IV.M.

Title III of the Energy Policy and Conservation Act of 1975 (42 U.S.C. 6291, et seq.; “EPCA” or, “the Act”) 1 sets forth a variety of provisions designed to improve energy efficiency. Part B of title III, which for editorial reasons was redesignated as Part A upon incorporation into the U.S. Code (42 U.S.C. 6291-6309, as codified), establishes the “Energy Conservation Program for Consumer Products Other Than Automobiles.” This program includes general service lamps, the subject of this final rule.

Under EPCA, the energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. The testing requirements consist of test procedures that manufacturers of covered products must use as the basis for (1) certifying to DOE that their products comply with the applicable energy conservation standards adopted under EPCA (42 U.S.C. 6295(s)) and (2) making representations about the energy use or efficiency of those products (42 U.S.C. 6293(c)). Similarly, DOE must use these test procedures to determine whether the products comply with any relevant standards promulgated under EPCA. (42 U.S.C. 6295(s))

DOE issued a notice of proposed rulemaking (NOPR) on March 17, 2016, proposing energy conservation standards for general service lamps (GSLs). 81 FR 14528 (March 2016 GSL ECS NOPR). In support of the standards rulemaking, DOE has undertaken several rulemakings to amend existing test procedures and to adopt new test procedures for lamps that are GSLs. On July 1, 2016, DOE published a final rule adopting test procedures for integrated lighting-emitting diode (LED) lamps. 81 FR 43404 (July 2016 LED TP final rule). On August 29, 2016, DOE published a final rule amending test procedures for medium base compact fluorescent lamps (MBCFLs) and adopting test procedures for new metrics for all compact fluorescent lamps (CFLs) including hybrid CFLs and CFLs with bases other than medium screw base. 81 FR 59386 (August 2016 CFL TP final rule).

The March 2016 GSL TP NOPR, which is the basis for this final rule, proposed test procedures for certain categories of GSLs not currently covered under these existing test procedures. 81 FR 14632 (March 17, 2016). DOE published a supplemental notice of proposed rulemaking (SNOPR) on July 20, 2016, that revised the March 2016 GSL TP NOPR proposal by referencing Illuminating Engineering Society (IES) LM-79-08 for the testing of non-integrated LED lamps. 81 FR 47071 (July 2016 GSL TP SNOPR). This final rule adopts test procedures for certain categories of GSLs not currently covered under existing test procedures. Manufacturers of the lamps subject to this final rule will be required to use these test procedures to assess performance relative to any potential energy conservation standards the lamps must comply with in the future and for any representations of energy efficiency.

Under 42 U.S.C. 6293(b), EPCA sets forth the criteria and procedures DOE must follow when prescribing or amending test procedures for covered products. EPCA provides, in relevant part, that any test procedures prescribed or amended under this section shall be reasonably designed to produce test results which measure energy efficiency, energy use or estimated annual operating cost of a covered product during a representative average use cycle or period of use and shall not be unduly burdensome to conduct. (42 U.S.C. 6293(b)(3)) Pursuant to this authority, DOE adopts test procedures in this final rule for certain categories of GSLs in support of the GSL standards rulemaking.

Finally, EPCA directs DOE to amend its test procedures for all covered products to integrate measures of standby mode and off mode energy consumption, if technically feasible. (42 U.S.C. 6295(gg)(2)(A)) Standby mode and off mode energy must be incorporated into the overall energy efficiency, energy consumption, or other energy descriptor for each covered product unless the current test procedures already account for and incorporate standby and off mode energy consumption or such integration is technically infeasible. If an integrated test procedure is technically infeasible, DOE must prescribe a separate standby mode and off mode energy use test procedure for the covered product. Id. Any such amendment must consider the most current versions of the International Electrotechnical Commission (IEC) Standard 62301 and IEC Standard 62087, as applicable. DOE has determined that GSLs can operate in standby mode but not in off mode. Consistent with EPCA's requirement, DOE addresses measurement of standby mode power in appendix DD to subpart B of 10 CFR part 430, as detailed in section III.C of this final rule.

In this final rule, DOE adopts test procedures for determining initial lumen output, input power, lamp efficacy, power factor, and standby mode power for certain categories of GSLs for which DOE does not have an existing regulatory test procedure. DOE also notes that, beginning 180 days after the publication of this final rule, representations of energy use or energy efficiency must be based on testing in accordance with the test procedure adopted in this rulemaking.

GSL is defined by EPCA to include general service incandescent lamps (GSILs), CFLs, general service LED or organic light-emitting diode (OLED) lamps, and any other lamp that DOE determines is used to satisfy lighting applications traditionally served by GSILs. (42 U.S.C. 6291(30)(BB)) In the March 2016 GSL ECS NOPR, DOE proposed to implement the statutory definition of GSL and to include in the definition any lamp that has an ANSI 2 base, operates at any voltage, has an initial lumen output of 310 lumens or greater (or 232 lumens or greater for modified spectrum GSILs), is not a light fixture, is not an LED downlight retrofit kit, and is used in general lighting applications. 81 FR 14541. In the March 2016 GSL TP NOPR, DOE proposed test procedures for certain categories of general service lamps that do not have existing DOE regulatory procedures and clarified references to the existing DOE regulatory procedures for integrated LED lamps, CFLs, and GSILs. 81 FR 14632 (March 17, 2016) As there were no new comments received on the July 2016 GSL TP SNOPR regarding the scope of applicability of this rulemaking, this final rule adopts test procedures for GSLs that are not GSILs, CFLs, or integrated LED lamps.

As described in section III.A, both the statutory definition and proposed regulatory definition of GSL cover many types of lamps using a variety of lighting technologies. For several of the included lamp types, energy conservation standards and test procedures already exist. GSILs are required to comply with the energy conservation standards in 10 CFR 430.32(x), and test procedures for these lamps are specified in appendix R to subpart B of 10 CFR part 430. In a separate test procedure rulemaking, DOE recently amended the test procedures for MBCFLs and established new test procedures for all other CFLs. 81 FR 59386. The updated and new test procedures appear at appendix W to subpart B of 10 CFR part 430. In addition, DOE recently adopted test procedures for integrated LED lamps. 81 FR 43404. The test procedures for integrated LED lamps are located in appendix BB to subpart B of 10 CFR part 430.

DOE proposed in the March 2016 GSL TP NOPR that, if DOE test procedures already exist or were proposed in an ongoing rulemaking (such as for GSILs, CFLs, and integrated LED lamps), DOE would reference those specific provisions in the GSL test procedures. For all other GSLs, DOE proposed new test procedures, intending to reference the most recently published versions of relevant industry standards. 81 FR 14633-14634. DOE proposed modifications to the test procedures for non-integrated LED lamps in the July 2016 GSL TP SNOPR. 81 FR 47074-47075. The following discussion summarizes those changes and comments received on the modifications to the proposed test procedures for non-integrated LED lamps.

In the March 2016 GSL TP NOPR, DOE proposed testing non-integrated LED lamps according to the industry test standard CIE S025. 81 FR 14634. In the analysis phase of that NOPR, DOE determined that IES LM-79-08 was not intended for non-integrated LED lamps given that IES LM-79-08 states in section 1.1 that the test method covers “LED-based SSL products with control electronics and heat sinks incorporated, that is, those devices that require only AC mains power or a DC voltage power supply to operate.” Non-integrated LED lamps require external electronics; that is, the lamps are intended to connect to ballasts/drivers rather than directly to the branch circuit through an ANSI base and corresponding ANSI standard lamp holder (socket).

However, stakeholder feedback on the March 2016 GSL TP NOPR indicated that non-integrated LED lamps are commonly tested within industry according to IES LM-79-08. Further, based on a review of manufacturer specifications and input from independent testing laboratories, DOE determined that IES LM-79-08 is the most relevant industry standard, at the present time, for testing non-integrated LED lamps. 81 FR 47074. Although most manufacturers do not publish the test method used to determine performance characteristics of non-integrated LED lamps, DOE found that for those that did, IES LM-79-08 was the test method used to measure the performance of non-integrated LED lamps. See, for example, manufacturer specifications provided by Maxlite and Eiko available in the docket at: https://www.regulations.gov/docket?D=EERE-2016-BT-TP-0005. In addition, DOE contacted independent test laboratories and found that the laboratories generally used IES LM-79-08 when testing non-integrated LED lamps because, even though it does not specifically include them, the laboratories view IES LM-79-08 as the most applicable industry standard for these lamp types. 81 FR 47074. In the July 2016 GSL TP SNOPR, DOE also preliminarily concluded that once it is determined how to supply the power to the lamp or on which ballast/driver to operate the lamp for testing, there was little difference in testing an integrated versus a non-integrated LED lamp. Further, DOE noted that some of these products had been tested and the results reported in the LED Lighting Facts database and the qualified products list for the Lighting Design Lab. Both of these organizations specify IES LM-79-08 as a test method for all included products. Id.

Thus, upon reviewing the available information, DOE tentatively determined in the July 2016 GSL TP SNOPR that for the testing of non-integrated LED lamps, IES LM-79-08 was the most relevant industry standard at the time. Further, DOE reviewed IES LM-79-08 and found it appropriate for testing non-integrated LED lamps for the purpose of determining compliance with energy efficiency standards that may be applicable in the future. However, because non-integrated LED lamps are not included in the scope of the industry standard, DOE prescribed additional instruction to ensure consistent and repeatable results. Specifically, DOE found that IES LM-79-08 provided no information on which external ballast/driver or power supply to use for testing. After reviewing the approaches of independent test laboratories, DOE proposed that non-integrated LED lamps be tested according to IES LM-79-08, using the manufacturer-declared input voltage and current as the power supply. Because these metrics are typically not reported on the product packaging or in manufacturer literature, DOE also proposed revising the requirements for certification reports to include these quantities for non-integrated LED lamps. While manufacturers usually list compatible ballasts/drivers for these products, DOE noted that it is unknown with which ballast/driver these lamps may operate when installed in the field. By requiring these lamps to be tested using the manufacturer-declared input voltage and current as the power supply, DOE's approach is consistent with the industry practice of using reference ballasts for non-integrated lamps, such as non-integrated CFLs and general service fluorescent lamps (GSFLs). For those products, industry standards (and DOE's test procedures) specify electrical settings for reference ballasts and each specific lamp type is tested using those same settings. Because industry had not yet developed reference ballast/driver settings for non-integrated LED lamps, DOE proposed that a manufacturer report the settings that are used, which allows for a consistent and comparable assessment of the lamp's performance. Therefore, DOE proposed the requirement that non-integrated LED lamps be tested according to IES LM-79-08, using the manufacturer-declared input voltage and current as the power supply. Id.

DOE received comments on the proposed modifications to the test procedures for non-integrated LED lamps. Philips Lighting (Philips) agreed with DOE's reference to IES LM-79-08 for the testing of non-integrated LED lamps but with suggested modifications. (Philips, No. 12 at p. 3) 3 Specifically, Philips argued that requiring non-integrated LED lamps to be operated at the manufacturer-declared input voltage and current may create issues with non-integrated LED lamps that operate directly on an existing (i.e., already installed) ballast or with a dedicated LED driver that utilizes a pulse width modulated (PWM) output voltage. Philips suggested the following alternative wording to address the issue: “For non-integrated LED lamps, operate the lamp at the manufacturer-declared input voltage waveform and current, or using a manufacturer-declared commercial ballast.” Philips noted that the alternative wording captures any frequency that needs to be included if operated on a ballast, addresses PWM operation, and allows for the use of a specific ballast during testing. (Philips, No. 12 at p. 4)

DOE notes that the test procedure must produce consistent and repeatable results as well as balance testing burden. Because a ballast and/or a provided input voltage and current can affect lamp performance, specific input settings need to be identified for testing. Otherwise, manufacturers would need to test every combination of lamp voltage and current with each ballast distributed in commerce. DOE notes that the alternative wording proposed by Philips allows the lamp to be operated on a manufacturer-declared input voltage and current or using a manufacturer-declared commercial ballast; however, only one of these options should be specified to improve the consistency and repeatability of results. DOE is therefore adopting that testing be conducted at the manufacturer-declared input voltage and current. These inputs can likely be supplied by existing lab equipment and do not require the purchase of additional ballasts for testing. DOE notes that certain ballasts may be difficult to acquire or possibly contain features that affect lamp performance. DOE therefore prefers to have manufacturers specify an input voltage and current to use for testing. In their alternative wording, Philips also suggested adding “waveform” when specifying the input voltage to account for drivers that provide a PWM output voltage. DOE notes that a PWM output voltage could affect the measured performance of the lamp. PWM operation modifies the time the input signal is on versus the time it is off at a given frequency, and thereby the resulting input waveform can vary the average total input voltage. Varying the input voltage could impact the temperature and subsequently the performance of LED lamps. Therefore, test settings should be specified at one voltage and waveform so that test results for one lamp are consistent and repeatable. Rather than the manufacturer selecting this voltage and waveform, DOE is specifying, as proposed in the July 2016 GSL TP SNOPR, that manufacturers test the lamp at the voltage and waveform present at maximum input power. This provision for testing captures the most consumptive state and also allows for performance to be more fairly compared among available products. DOE understands a PWM output voltage to be a common output of dimming ballasts/drivers. By specifying the lamp be tested at the maximum input power, DOE not only captures the most consumptive state but also allows dimmable products to be more fairly compared to products that cannot dim by operating all lamps at maximum input power (i.e., full light output). In requiring that manufacturers specify input voltage and current and operate the lamp at full light output, DOE finds that no changes to the proposed wording are necessary for the testing of non-integrated LED lamps.

The California Investor Owned Utilities (CA IOUs) contended that because operating non-integrated LED lamps at the manufacturer-declared input voltage and current does not account for ballast losses which can be up to several watts, the test procedure does not accurately measure system luminous efficacy. CA IOUs noted that if only lamp wattage is measured and ballast losses are not accounted for, these lamps will appear more efficient than they are in practice. CA IOUs added that the test procedure should account for the energy consumption of each component necessary for the starting and stable operation of the lamp, which includes a ballast if paired with a non-integrated LED lamp. Thus, CA IOUs recommended DOE require that manufacturers use a commercially-available reference ballast for testing non-integrated LED lamps and report to DOE the ballast utilized in testing. CA IOUs concluded that a commercially-available ballast would better approximate actual installed conditions rather than using customized testing equipment designed to achieve low power losses. (CA IOUs, No. 11 at pp. 1-2)

As stated by CA IOUs, when testing on a commercially available ballast/driver, the losses associated with the ballast/driver would be included in the measured performance of the lamp. Including the ballast/driver losses in the measured performance of the lamp would result in a lower efficacy value (i.e., system efficacy) than when measuring the performance of the lamp using manufacturer-declared input voltage and current as the power supply. In addition, allowing testing on commercially available ballasts/drivers could generate inconsistent test results across products as lamps would not be tested using the same settings, and the performance of the lamp would be dictated by the ballast/driver it was paired with during testing. Hence, consistent test results for the same lamp would not be possible. Therefore, DOE is adopting the requirement that manufacturers operate non-integrated LED lamps during testing using the manufacturer-declared input voltage and current, and is not allowing for testing on commercially available ballast/drivers. DOE notes that although the testing of integrated lamps includes ballast/driver losses, integrated lamps can operate on only one ballast (i.e., the ballast contained within the lamp unit that cannot be removed) and therefore the inclusion of that ballast reflects typical performance. Non-integrated lamps can be commonly operated on more than one ballast/driver and therefore DOE is specifying test settings to consistently characterize the performance of the lamp. DOE also notes that the approach being adopted today for non-integrated LED lamps is comparable to DOE's regulatory approach for other non-integrated lamps (e.g., GSFLs). While DOE acknowledges there may be losses associated with the commercially available ballasts paired with non-integrated lamps, DOE is declining to adopt the recommendation of the CA IOUs at this time. DOE does not believe consumers will be confused by this difference in approach for integrated lamps and non-integrated lamps because consumers do not typically compare these two categories of products because they serve different installations. The metric reflects the performance of the product tested rather than its performance on a unique, external component, which would significantly increase the burden due to the number of lamp and ballast/driver combinations. DOE will continue to work with stakeholders to monitor the ballast/driver losses and may consider an alternative approach in a future rulemaking.

Regarding the requirement for manufacturers to report the manufacturer-declared input voltage and current used for testing non-integrated LED lamps, Philips agreed with the proposal but noted that these settings should not be made available to the public as they do not typically appear on datasheets. (Philips, No. 12 at p. 3) DOE notes that it found some publicly available datasheets with input voltage and current listed for non-integrated LED lamps indicating that this information is not likely to be considered proprietary. See, e.g., https://www.regulations.gov/docket?D=EERE-2016-BT-TP-0005. Additionally, publishing manufacturer-declared input voltage and current allows for comparison of performance across products. Therefore, DOE adopts the requirement in this final rule for manufacturers to include the manufacturer-declared input voltage and current used for testing in the certification reports for non-integrated LED lamps.

In the July 2016 GSL TP SNOPR, DOE referred to appendix R for general service incandescent lamps, to appendix BB for integrated LED lamps, to IES LM-45-15 for other incandescent lamps that are not reflector lamps, and to IES LM-79-08 for OLED lamps. DOE reviewed all references to industry standards to ensure that only necessary sections were referenced. DOE removed all references to sections describing luminous intensity and/or color measurements as these are not necessary for the metrics covered by the test procedure. DOE also made references to IES LM-79-08 consistent with sections referenced in the July 2016 LED TP final rule; that is, DOE added a reference to section 1.3 (Nomenclature and Definitions) and removed the reference to section 6.0 (Operating Orientation). Additionally, DOE specified the appropriate operating orientation directly in appendix DD. 81 FR 47075.

Philips commented in general agreement with DOE's references to industry standards; however, Philips recommended DOE reference IES LM-79-08 in its entirety rather than selected sections. (Philips, No. 12 at p. 3) When providing comprehensive test procedures for multiple test metrics, DOE often has to clarify, limit, or add further specification to industry standards that are referenced to ensure consistent, repeatable results. Therefore, instead of incorporating an industry standard in its entirety, DOE references the relevant sections of the industry standard and clearly states any directions that differ from those in the industry standard.

Philips also commented on the language proposed in the July 2016 GSL TP SNOPR regarding operating orientation. In section 3.3 of appendix DD, DOE proposed an equal number of lamps in a sample be tested in the base-up and base-down orientation, except if the manufacturer restricts the position, in which case all units would be tested in the manufacturer-specified position. Philips argued that this is not a practical requirement for non-integrated LED lamps intended to replace linear lamps, which do not have a base-up or base-down orientation and are operated and tested horizontally in practice. Therefore, Philips suggested the operating orientation during testing should be as specified by the manufacturer. (Philips, No. 12 at p. 4) DOE notes that operating orientation is not typically specified on the packaging or specification sheets of LED lamps. DOE agrees, however that certain non-integrated LED lamps, such as double base non-integrated LED lamps designed to replace linear fluorescent lamps, cannot be operated in a base-up or base-down position since there are bases on both ends. Thus, DOE is modifying the operating orientation requirement in this final rule for testing double base lamps to state that manufacturers are to test all units in the horizontal orientation except that, if the manufacturer restricts the position, manufacturers are to test all of the units in the sample in the manufacturer-specified position. DOE is also specifying in this final rule that orientation is to be maintained as prescribed in the active mode test procedure when determining standby mode power.

In the March 2016 GSL TP NOPR, DOE proposed a new paragraph to be added to 10 CFR 430.23 to establish test procedures for all GSLs. 81 FR 14640. As stated previously, if test procedures already existed for a lamp type that meets the definition of GSL, DOE referenced the existing test procedure. Thus, in the paragraph proposed to be added to 10 CFR 430.23, DOE included references to the existing paragraphs in § 430.23 for those GSLs that already have test procedures and the metrics required by those existing test procedures. DOE received a comment from Philips on the proposed amendments to § 430.23. Specifically, Philips objected to the inclusion of start time as a metric for both integrated and non-integrated CFLs. Philips noted that it should not be included for non-integrated CFLs, as start time is highly dependent on the type of ballast paired with the non-integrated CFL. (Philips, No. 12 at p. 4) As stated previously, DOE simply referenced existing DOE test procedures in § 430.23 when possible. DOE further notes that for CFLs, the GSL test procedure references the test procedures adopted and amended in the August 2016 CFL TP final rule, which established a start time test procedure only for integrated CFLs. 81 FR 59396.

DOE did not receive any additional comments on its approach to referring to DOE test procedures if they already exist and referring to the most recent versions of relevant industry standards for lamp types that do not have existing DOE test procedures. Thus, DOE adopts this approach in the final rule. Table III.1 summarizes the test procedures that DOE is adopting for general service lamps.

As described in section I, EPCA directs DOE to amend its test procedures for all covered products to integrate measures of standby mode and off mode energy consumption, if technically feasible. (42 U.S.C. 6295(gg)(2)(A)) In the March 2016 GSL TP NOPR, DOE proposed both active mode and standby mode test procedures for general service lamps. DOE did not propose a test procedure for off mode energy consumption because DOE initially determined that it would not be possible for GSLs included in the scope of the energy conservation standards rulemaking to meet the off-mode criteria. 81 FR 14634. DOE found that there was no condition in which a GSL connected to main power is not already in a mode accounted for in either active or standby mode. Id. DOE proposed to use the standby mode test procedures outlined in the IEC Standard 62301, which applies generally to household electrical appliances. Referencing IEC 62301 is consistent with the standby mode test procedures adopted for CFLs and integrated LED lamps. 81 FR 59401 and 81 FR 43415.

DOE received several comments in response to the March 2016 GSL TP NOPR regarding the proposed method for determining standby mode power. Osram Sylvania, Inc. (OSI) and National Electrical Manufacturers Association (NEMA) supported DOE's proposed test method for measuring standby mode power use, which they stated is consistent with other DOE test procedures and with industry practices. (OSI, No. 3 at p. 3; NEMA, No. 6 at p. 3) However, CA IOUs suggested a change to the standby mode test procedure. CA IOUs recommended that DOE specify testing with the communication protocol expected to have the highest energy consumption and provide a prioritization of the potential communication protocols available. If multiple communication protocols (Wi-Fi, Bluetooth, ZigBee, etc.) are available, CA IOUs recommended specifying that the communication protocol should be selected based on the following order: 1) Wi-Fi; 2) ZigBee; 3) ANT; 4) Bluetooth; 5) Other Radio Frequency (RF) Protocols; 6) Infrared (IR); 7) Other; 8) Wired. CA IOUs also recommended DOE require testing be conducted in the applicable communication mode that is representative of the operation mode that is typical of the end user (i.e., normal operating mode as shipped). (CA IOUs, No. 11 at p. 2)

DOE reviewed lamps that can operate in standby mode and found that average standby power did not vary consistently by communication protocol. DOE reviewed the test data published in the technical support document 4 of the March 2016 GSL ECS NOPR and also test data submitted in a comment by the Pacific Gas and Electric Company, Southern California Gas Company, San Diego Gas and Electric, Southern California Edison, Arizona Public Service, and National Grid (Utility Coalition) in support of the GSL ECS rulemaking.5 In both datasets, DOE found that the standby power of the communication protocols tested were generally available in a range of values and one communication protocol did not have consistently higher or lower power consumption than another. For example, data provided by CA IOUs showed the standby mode power of lamps operating using Wi-Fi varying from a minimum of 0.237 W to a maximum of 0.401 W (excluding the noted outlier of 2.42 W) and the standby mode power of lamps operating using ZigBee varying from a minimum of 0.185 W to a maximum of 0.439 W. With no clear trend, DOE is not specifying a prioritization order for testing at this time. DOE will continue to monitor the market and will revise the test procedure as needed as the market develops.

CA IOUs also commented that for connected products that may continue to search for control signals after receiving the last signal, waiting at least 60 minutes after the last signal before performing a standby mode power measurement would allow such products to enter a lower power state. CA IOUs noted that this would ensure that the product mode under test is representative of the power drawn the majority of the time the product is in standby mode. (CA IOUs, No. 11 at p. 2) In the March 2016 GSL TP NOPR, DOE proposed that standby mode power measurements be taken after the lamp had stabilized according to section 5 of IEC 62301. 81 FR 14640. The stabilization requirements ensure that the lamp has reached steady-state operation prior to taking measurements. Requiring a minimum period of at least 60 minutes before taking measurements is an unnecessary instruction because the stabilization requirements achieve the same goal of ensuring that the product is consuming a consistent amount of power. Therefore, in this final rule, DOE is not adding a requirement to wait at least 60 minutes after receiving the last communication signal before measuring standby mode power consumption.

As there were no other comments received on DOE's proposed method for determining standby mode power, DOE adopts the standby mode test procedure proposed in the March 2016 GSL TP NOPR in this final rule.

In the July 2016 GSL TP SNOPR, DOE proposed to require that testing of initial lumen output, input power, lamp efficacy, power factor, and standby mode power (if applicable) for GSLs be conducted by test laboratories accredited by an Accreditation Body that is a signatory member to the International Laboratory Accreditation Cooperation (ILAC) Mutual Recognition Arrangement (MRA). 81 FR 47076. DOE noted that under existing test procedure regulations, testing for other regulated lighting products (such as general service fluorescent lamps, incandescent reflector lamps, and fluorescent lamp ballasts), in addition to general service lamps that must already comply with energy conservation standards (such as general service incandescent lamps and medium base compact fluorescent lamps), must be conducted in a similarly accredited facility. 10 CFR 430.25. DOE also proposed to align the proposed certification report language in § 429.57(b) with the proposed changes in § 430.25. Similarly, DOE proposed to update § 429.27(b) and § 429.35(b) to align with the proposed changes regarding accreditation bodies in § 430.25. Id.

DOE received a comment from Philips on the proposed certification report language regarding ILAC accreditation in § 429.35(b)(2). Philips noted that ILAC does not assign identification numbers to test laboratories; instead, the identification numbers come from accreditation bodies. Philips suggested DOE modify the language to state that the certification report must include the “testing laboratory's identification number, or other approved identification, as assigned by the accreditation body . . .” (Philips, No. 12 at p. 4) DOE notes that the language requiring “the testing laboratory's ILAC accreditation body's identification number or other approved identification assigned by the ILAC accreditation body” is not intended to imply that ILAC assigns the identification number to test laboratories, rather the language suggests that the ILAC-approved accreditation body would supply an identification number or another form of identification. Thus, DOE maintains that using “ILAC” as a designator to “accreditation body” in the regulatory text is necessary to ensure that the accreditation bodies are ILAC-approved.

DOE notes that the certification report language revision in § 429.35(b) was previously adopted in the August 2016 CFL TP final rule and therefore is no longer included in this test procedure.

In the March 2016 GSL TP NOPR, DOE proposed to create a new section for GSLs, 10 CFR 429.57, to provide sampling, represented value, certification, and rounding requirements. 81 FR 14634. Existing sampling procedures in 10 CFR part 429 are referenced, where applicable. If a test procedure does not currently exist, sampling and represented value calculations reference the existing DOE test procedure with the most similar lamp technology. For example, sampling and represented value calculations for OLED lamps are to be as described in section 10 CFR 429.56, the section that addresses integrated LED lamps. DOE also proposed certification and rounding requirements to include the relevant metrics for general service lamps. Rounding requirements are consistent with those for GSILs, CFLs, and integrated LED lamps. 81 FR 59415-59416 and 81 FR 43425-43426.

DOE did not make any modifications to this approach in the July 2016 GSL TP SNOPR and received no comments on these requirements; therefore, DOE adopts them in this final rule.

The test procedures adopted in this final rule for GSLs that are not integrated LED lamps, CFLs, or GSILs, are effective 30 days after publication in the Federal Register (referred to as the “effective date”). DOE notes that manufacturers may voluntarily begin to make representations with respect to the energy use or efficiency of GSLs that are not integrated LED lamps, CFLs, and GSILs using the results of testing pursuant to this final rule, starting on the effective date of this final rule. Pursuant to EPCA, manufacturers of covered products are required to use the applicable test procedure as the basis for determining that their products comply with the applicable energy conservation standards and for making representations about the efficiency of those products. (42 U.S.C. 6293(c); 42 U.S.C. 6295(s)) For those energy efficiency or consumption metrics covered by the DOE test procedure (i.e., the test method and sampling plan), EPCA requires that, beginning 180 days after publication of this final rule in the Federal Register, representations must reflect testing in accordance with the DOE test procedure. (42 U.S.C. 6293(c)(2)) Therefore, on or after 180 days after publication of this final rule, any representations, including certifications of compliance (if required), made with respect to the energy use or efficiency of GSLs that are not integrated LED lamps, CFLs, and GSILs must reflect the results of testing pursuant to this final rule.

DOE received comments regarding the dates discussed in the July 2016 GSL TP SNOPR. Philips commented that due to the volume of lamps covered under the scope of the rulemaking, DOE should require that manufacturers make representations based on this test procedure only for GSLs that have initiated testing after the effective date of the test procedure (i.e., only new products should be tested under the test procedure). Philips noted that DOE could add “test start date” to the certification reports to ensure manufacturers comply. Philips concluded that retesting lamps is unproductive, burdensome on industry, and diverts resources from testing new products that are more efficient. (Philips, No. 12 at p. 3) DOE notes that existing basic models need only be retested if their representative values would no longer be valid under the test procedures adopted in this rulemaking. Because DOE has referenced the most recent versions of relevant industry standards for the lamp types covered by this rulemaking, it is unlikely that all of a manufacturer's existing basic models will need to be re-tested. After the effective date of this final rule (i.e., 30 days after publication in the Federal Register), all new basic models must be tested in accordance with appendix DD. EPCA requires that on or after 180 days after publication of this final rule, the representations of existing basic models of GSLs that will no longer be valid must reflect testing in accordance with the adopted test procedures in appendix DD. In addition, DOE notes that under 42 U.S.C. 6293(c)(3), manufacturers may petition the Secretary for an extension of the compliance date for up to 180 days. Manufacturers may be granted an extension if the Secretary determines that the requirements would impose an undue hardship on the petitioner. (See 42 U.S.C. 6293(c)(3))

The Office of Management and Budget (OMB) has determined that test procedure rulemakings do not constitute “significant regulatory actions” under section 3(f) of Executive Order 12866, Regulatory Planning and Review, 58 FR 51735 (Oct. 4, 1993). Accordingly, this action was not subject to review under the Executive Order by the Office of Information and Regulatory Affairs (OIRA) in the OMB.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that when an agency promulgates a final rule under 5 U.S.C. 553, after being required by that section or any other law to publish a general notice of proposed rulemaking, the agency shall prepare a final regulatory flexibility analysis (FRFA), unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003 to ensure that the potential impacts of its rules on small entities are properly considered during the DOE rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's Web site: http://energy.gov/gc/office-general-counsel.

DOE reviewed this final rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. DOE certifies that the rule will not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is set forth in the following sections.

The Small Business Administration (SBA) considers a business entity to be a small business, if, together with its affiliates, it employs less than a threshold number of workers specified in 13 CFR part 121. These size standards and codes are established by the North American Industry Classification System (NAICS). Manufacturing of GSLs is classified under NAICS 335110, “Electric Lamp Bulb and Part Manufacturing.” The SBA sets a threshold of 1,250 employees or less for an entity to be considered as a small business for this category.

In the July 2016 GSL TP SNOPR, to estimate the number of companies that could be small businesses that sell GSLs, DOE conducted a market survey using publicly available information. DOE's research involved information provided by trade associations (e.g., the National Electrical Manufacturers' Association) and information from DOE's Compliance Certification Management System (CCMS) Database, the Environmental Protection Agency's ENERGY STAR Certified Light Bulbs Database, LED Lighting Facts Database, previous rulemakings, individual company Web sites, SBA's database, and market research tools (e.g., Hoover's reports). DOE screened out companies that did not meet the definition of a “small business” or are completely foreign owned and operated. DOE determined that nine companies are small businesses that maintain domestic production facilities for GSLs. 81 FR 47077. DOE did not receive comments on this determination, therefore it was maintained in the final rule.

In the July 2016 GSL TP SNOPR, DOE proposed test procedures for determining initial lumen output, input power, lamp efficacy, power factor, and standby power of GSLs. DOE noted that several of the lamp types included in the definition of general service lamp must already comply with energy conservation standards and therefore test procedures already existed for these lamps. If DOE test procedures already existed or were proposed in an ongoing rulemaking (such as for GSILs, CFLs, and integrated LED lamps), DOE proposed to reference them directly. For all other general service lamps, DOE proposed new test procedures in the July 2016 GSL TP SNOPR. For the new test procedures, DOE proposed to reference the most recent versions of relevant industry standards.

DOE estimated the testing costs and burden associated with conducting testing according to the new test procedures proposed in the July 2016 GSL TP SNOPR for GSLs. DOE did not consider the costs and burdens associated with DOE test procedures that already exist or that have been proposed in other ongoing rulemakings because these have been or are being addressed separately. DOE also assessed elements (testing methodology, testing times, and sample size) in the CFL and integrated LED lamp test procedures that could affect costs associated with complying with this rule. Having received no comments on the topic, the cost estimates of this final rule are the same as those determined under the July 2016 GSL TP SNOPR. The following is an analysis of both in-house and third party testing costs associated with this rulemaking.

In the July 2016 GSL TP SNOPR, DOE estimated that the labor costs associated with conducting in-house testing of initial lumen output, input power, and standby mode power were $41.68 per hour. DOE determined that calculating efficacy and power factor of a GSL would not result in any incremental testing burden beyond the cost of conducting the initial lumen output and input power testing. The cost of labor was then calculated by multiplying the estimated hours of labor by the hourly labor rate. For lamps not capable of operating in standby mode, DOE estimated that testing in-house in accordance with the appropriate proposed test procedure would require, at most, four hours per lamp by an electrical engineering technician. For lamps capable of operating in standby mode, DOE estimated that testing time would increase to five hours per lamp due to the additional standby mode power consumption test. DOE noted that these estimates are representative of the time it would take to test the most labor intensive technology, LED lamps. In total, DOE estimated that using the test method prescribed in the July 2016 GSL TP SNOPR to determine initial light output and input power would result in an estimated labor burden of $1,670 per basic model of certain GSLs and $2,080 per basic model of certain GSLs that can operate in standby mode. 81 FR 47078.

Because accreditation bodies 6 impose a variety of fees during the accreditation process, including fixed administrative fees, variable assessment fees, and proficiency testing fees, DOE included the costs associated with maintaining a NVLAP-accredited facility or a facility accredited by an organization recognized by NVLAP in the July 2016 GSL TP SNOPR. In the first year, for manufacturers without NVLAP accreditation who choose to test in-house, DOE estimated manufacturers on average would experience a maximum total cost burden of about $2,210 per basic model tested or $2,630 per basic model with standby mode power consumption testing.7 Id.

Additionally, DOE requested pricing from independent testing laboratories for testing GSLs. DOE estimated the cost for testing at an independent laboratory to be up to $1,070 per basic model. This estimate included the cost of accreditation as quotes were obtained from accredited laboratories. Id.

DOE notes that its adopted test procedures directly reference existing industry standards that have been approved for widespread use by lamp manufacturers and test laboratories. The quantities that are directly measured, namely initial lumen output and input power, are commonly reported by the manufacturer on product packaging and on product specification sheets. Thus, testing for these quantities is already being conducted. Additionally, these quantities are required to be reported to ENERGY STAR if manufacturers certify the lamps as meeting the program requirements. Standby mode power consumption is also a reported quantity for the ENERGY STAR program, though it may not be a commonly reported value for lamps that are not certified with ENERGY STAR. In reviewing the lamps for which DOE adopts test procedures in this final rule, DOE notes that very few products can operate in standby mode and therefore very few products would be required to make representations of standby mode energy consumption. Although DOE is adopting the requirement that all testing be conducted in accredited laboratories, DOE notes that many manufacturers of these products have already accredited their own in-house laboratories because they also make products such as GSILs and CFLs that are required to be tested in similarly accredited laboratories.

In summary, DOE does not consider the test procedures adopted in this final rule to have a significant economic impact on small entities. The final cost per manufacturer primarily depends on the number of basic models the manufacturer sells. These are not annual costs because DOE does not require manufacturers to retest a basic model annually. The initial test results used to generate a certified rating for a basic model remain valid as long as the basic model has not been modified from the tested design in a way that makes it less efficient or more consumptive, which would require a change to the certified rating. If a manufacturer has modified a basic model in a way that makes it more efficient or less consumptive, new testing is required only if the manufacturer wishes to make representations of the new, more efficient rating.

Based on the criteria outlined earlier and the reasons discussed in this preamble, DOE certifies that the test procedures adopted in this final rule would not have a significant economic impact on a substantial number of small entities, and the preparation of a final regulatory flexibility analysis is not warranted. DOE has submitted a certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the SBA for review under 5 U.S.C. 605(b).

DOE established regulations for the certification and recordkeeping requirements for certain covered consumer products and commercial equipment. 10 CFR part 429, subpart B. This collection-of-information requirement was approved by OMB under OMB control number 1910-1400.

DOE requested OMB approval of an extension of this information collection for three years, specifically including the collection of information proposed in the present rulemaking, and estimated that the annual number of burden hours under this extension is 30 hours per company. In response to DOE's request, OMB approved DOE's information collection requirements covered under OMB control number 1910-1400 through November 30, 2017. 80 FR 5099 (January 30, 2015).

Notwithstanding any other provision of the law, no person is required to respond to, nor must 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.

In this final rule, DOE adopts test procedures for certain categories of GSLs that will be used to support the ongoing GSL standards rulemaking. DOE has determined that this rule falls into a class of actions that are categorically excluded from review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and DOE's implementing regulations at 10 CFR part 1021. Specifically, this final rule adopts existing industry test procedures for certain categories of general service lamps, so it will not affect the amount, quality or distribution of energy usage, and, therefore, will not result in any environmental impacts. Thus, this rulemaking is covered by Categorical Exclusion A6 under 10 CFR part 1021, subpart D. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have Federalism implications. The Executive Order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive Order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE examined this final rule and determined that it 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. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the products that are the subject of this final rule. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297(d)) No further action is required by Executive Order 13132.

Regarding the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Federal agencies the general duty to adhere to the following requirements: (1) Eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; (3) provide a clear legal standard for affected conduct rather than a general standard; and (4) promote simplification and burden reduction. Section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation (1) clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in sections 3(a) and 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this final rule meets the relevant standards of Executive Order 12988.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action resulting in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA also requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820; also available at http://energy.gov/gc/office-general-counsel. DOE examined this final rule according to UMRA and its statement of policy and determined that the rule contains neither an intergovernmental mandate, nor a mandate that may result in the expenditure of $100 million or more in any year, so these requirements do not apply.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This final rule will not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

DOE has determined, under Executive Order 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights” 53 FR 8859 (March 18, 1988), that this regulation will not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.

Section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB, a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under Executive Order 12866, or any successor order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use if the regulation is implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

This regulatory action to adopt test procedures for certain categories of GSLs is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as a significant energy action by the Administrator of OIRA. Therefore, it is not a significant energy action, and, accordingly, DOE has not prepared a Statement of Energy Effects.

Under section 301 of the Department of Energy Organization Act (Pub. L. 95-91; 42 U.S.C. 7101), DOE must comply with section 32 of the Federal Energy Administration Act of 1974, as amended by the Federal Energy Administration Authorization Act of 1977. (15 U.S.C. 788; FEAA) Section 32 essentially provides in relevant part that, where a proposed rule authorizes or requires use of commercial standards, the notice of proposed rulemaking must inform the public of the use and background of such standards. In addition, section 32(c) requires DOE to consult with the Attorney General and the Chairman of the Federal Trade Commission (FTC) concerning the impact of the commercial or industry standards on competition.

The test procedures for certain categories of GSLs adopted in this final rule incorporate test methods contained in certain sections of the following commercial standards:

DOE has evaluated these standards and is unable to conclude whether they fully comply with the requirements of section 32(b) of the FEAA (i.e., that they were developed in a manner that fully provides for public participation, comment, and review.) DOE has consulted with both the Attorney General and the Chairman of the FTC about the impact on competition of using the methods contained in these standards and has received no comments objecting to their use.

In this final rule, DOE incorporates by reference specific sections of the test standard published by IES, titled “IES Approved Method for the Electrical and Photometric Measurement of Fluorescent Lamps,” IES LM-9-09. IES LM-9-09 is an industry accepted test standard that specifies procedures to be observed in performing measurements of electrical and photometric characteristics of fluorescent lamps under standard conditions. The test procedures adopted in this final rule reference sections of IES LM-9-09 for performing electrical and photometric measurements of other fluorescent lamps. IES LM-9-09 is readily available on IES's Web site at www.ies.org/store/.

DOE also incorporates by reference specific sections of the test standard published by IES, titled “IES Approved Method for Photometry of Reflector Type Lamps,” IES LM-20-13. IES LM-20-13 is an industry accepted test standard that specifies photometric test methods for reflector lamps. The test procedures adopted in this final rule reference sections of IES LM-20-13 for performing electrical and photometric measurements of other incandescent lamps that are reflector lamps. IES LM-20-13 is readily available on IES's Web site at www.ies.org/store.

DOE also incorporates by reference specific sections of the test standard published by IES, titled “IES Approved Method for the Electrical and Photometric Measurement of General Service Incandescent Filament Lamps,” IES LM-45-15. IES LM-45-15 is an industry accepted test standard that specifies procedures to be observed in performing measurements of electrical and photometric characteristics of general service incandescent filament lamps under standard conditions. The test procedures adopted in this final rule reference sections of IES LM-45-15 for performing electrical and photometric measurements of other incandescent lamps that are not reflector lamps. IES LM-45-15 is readily available on IES's Web site at www.ies.org/store/.

DOE also incorporates by reference specific sections of the test standard published by IES, titled “IES Approved Method for the Electrical and Photometric Measurement of Solid-State Lighting Products,” IES LM-79-08. IES LM-79-08 is an industry accepted test standard that specifies electrical and photometric test methods for solid-state lighting products. The test procedures adopted in this final rule reference sections of IES LM-79-08 for performing electrical and photometric measurements of OLED lamps and non-integrated LED lamps. IES LM-79-08 is readily available on IES's Web site at www.ies.org/store.

DOE incorporates by reference certain sections of the test standard published by IEC, titled “Household electrical appliances—Measurement of standby power (Edition 2.0),” IEC 62301. IEC 62301 is an industry accepted test standard that describes measurements of electrical power consumption in standby mode, off mode, and network mode. The test procedures adopted in this final rule reference sections of IEC 62301 for testing standby mode power consumption of GSLs. IEC 62301 is readily available on IEC's Web site at https://webstore.iec.ch/home.

As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this rule before its effective date. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2).

The Secretary of Energy has approved publication of this final rule.

For the reasons stated in the preamble, DOE amends parts 429 and 430 of chapter II of title 10, Code of Federal Regulations as set forth below:

Discussion

On August 18, 2014, at 79 FR 48696, 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 Airbus Helicopters Model MBB-BK 117 C-2 helicopters with a lateral duplex trim actuator, part number (P/N) 418-00878-050 or P/N 418-00878-051, or a longitudinal duplex trim actuator, P/N 418-00878-000 or P/N 418-00878-001, installed. The NPRM proposed to require repetitively inspecting the lateral and longitudinal trim actuator output levers for correct torque of the nuts. The proposed requirements were intended to prevent a loose attachment screw, which could result in movement of the output lever in an axial direction, contact of a bolt connecting the control rod to an output lever with the actuator housing, and subsequent loss of helicopter control.

The NPRM was prompted by AD No. 2013-0182, dated August 12, 2013, issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Airbus Helicopters Model MBB-BK 117 C-2 helicopters with a lateral duplex trim actuator, P/N 418-00878-050 or P/N 418-00878-051, or with a longitudinal duplex trim actuator, P/N 418-00878-000 or P/N 418-00878-001. EASA advises that under unfavorable circumstances, a total loss of the trim actuator output lever attachment screw could lead to a restriction of the lateral and longitudinal control range. According to EASA, without the attachment screw, the output lever can move in the axial direction. This condition, if not detected, could cause the bolt that connects the control rod to the output lever to make contact with actuator housing, possibly resulting in reduced control of the helicopter.

To prevent this condition, EASA requires an initial torque check of the lateral and longitudinal trim actuator output lever attachment screws, the application of a torque marking, and repetitive inspections for correct torque thereafter. The EASA AD's requirements are considered an interim solution, pending a terminating modification.

Since the issuance of EASA AD No. 2013-0182, Eurocopter Deutschland GmbH has changed its name to Airbus Helicopters Deutschland GmbH.

We gave the public the opportunity to participate in developing this AD, but we received no comments on the NPRM (79 FR 48696, August 18, 2014).

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

We consider this AD to be an interim action because Airbus Helicopters is currently developing a modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved and available, we might consider additional rulemaking.

We reviewed Eurocopter (now Airbus Helicopters) Alert Service Bulletin MBB-BK117 C-2-67A-020, Revision 0, dated June 18, 2013 (ASB), which advises of a design review that showed that a loss of the attachment screw of the trim actuator output lever could restrict the lateral and longitudinal control range. The ASB consequently calls for an initial torque check and application of torque markings of the self-locking nuts, and subsequent repetitive inspections to maintain the proper torque.

We estimate that this AD affects 100 helicopters of U.S. Registry and that labor costs average $85 per work-hour. Based on these estimates, we expect the following costs:

• Applying torque and torque marking to the lateral and longitudinal trim actuator output levers requires 1 work-hour for a labor cost of $85. No parts are needed, so the cost for the U.S. fleet totals $8,500.

• Visually inspecting for correct torque requires 0.5 work-hour for a labor cost of about $43. No parts are needed, so the total cost for the U.S. fleet is $4,300 per inspection cycle.

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 helicopters identified in this rulemaking action.

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

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

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

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

(3) Will not affect intrastate aviation in Alaska 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.

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

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2012-20-07, Amendment 39-17213 (77 FR 63716, October 17, 2012) (“AD 2012-20-07”). AD 2012-20-07 applied to all Airbus Model A318, A319, A320, and A321 series airplanes. The NPRM published in the Federal Register on April 14, 2016 (81 FR 22033). The NPRM was prompted by Airbus issuing more restrictive maintenance requirements and/or airworthiness limitations. The NPRM proposed to continue to require revising the ALS of the ICA to incorporate new limitations for fuel tank systems in accordance with the type design, and revising the maintenance program to incorporate revised fuel maintenance and inspection tasks. The NPRM also proposed to require revising the maintenance or inspection program to incorporate revised fuel airworthiness limitations. We are issuing this AD to prevent the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in a fuel tank explosion and consequent loss 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 2014-0260, dated December 5, 2014 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition. The MCAI states:

The required action is revising the maintenance or inspection program to incorporate revised fuel airworthiness limitations. 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-2016-5589.

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.

The Airline Pilots Association, International stated that it supports the intent of the NPRM.

American Airlines (AAL) asked if airplanes with an operating certificate issued after the applicability date of July 19, 2014, in paragraph (c) of the NPRM, are excluded from the proposed requirements. AAL stated that it has received several Model A321 airplanes after July 19, 2014, that have the fuel tank inerting system (FTIS) installed in production; AAL thinks the requirement to replace the air separation module (ASM) having P/N 2060017-102 every 27,000 flight hours and other tasks listed in Airbus A318/A319/A320/A321 ALS Part 5, Fuel Airworthiness Limitations, Revision 01, dated July 9, 2014 (“ALS part 5 R01”), should apply to these airplanes. AAL requested that we revise the applicability by removing the July 19, 2014, date in paragraph (c) of the proposed AD and revising the applicability to be in sync with ALS part 5 R01.

We partially agree with AAL's requests. We agree that clarification is necessary. AAL stated that, for airplanes with the FTIS installed, operators must incorporate the ALS associated with the system in accordance with ALS part 5 R01. However, we would like to reiterate the information stated in the preamble of the NPRM under “Airworthiness Limitations Based on Type Design,” which states that operators of airplanes with an original certificate of airworthiness or original export certificate of airworthiness issued after July 19, 2014, must comply with the airworthiness limitations specified as part of the approved type design. These airplanes are not subject to the requirements of this AD. Therefore, if an airplane's type design includes systems such as the FTIS, then the corresponding ALS specified as part of the approved type design should address those systems as appropriate, and must be incorporated into the maintenance/inspection programs. Therefore, we disagree with AAL's request to change the applicability of this AD. We have not changed this AD in this regard.

AAL requested that we remove “Task 470000-05-1” from paragraph (j)(2) of the proposed AD because this is a one-time task, which AAL has completed.

We do not agree with AAL's request. Even if the current U.S. registered fleet already complies with the requirements of “Task 470000-05-1” in paragraph (j)(2) of this AD, the requirement is still necessary to ensure that any affected airplane imported and placed on the U.S. register in the future complies as well. We have not changed this AD in this regard.

AAL requested that we revise paragraph (j)(2)(ii) of the proposed AD to include Airbus Service Bulletins A320-47-1025 and A320-47-1026, which apply to AAL's airplanes.

We do not agree with AAL's request. AAL's suggested changes are for the retained requirements of AD 2012-20-07. Accomplishing the requirements of paragraph (l) of this AD terminates the retained requirements of paragraph (j) of this AD. Therefore, no change to this AD is needed in this regard.

AAL requested that we revise table 1 to paragraph (j)(4) of the proposed AD to include ASMs having P/N 2060017-103 to ensure that these parts are being tracked for removal every 27,000 flight hours. AAL stated that 25 airplanes in its fleet are equipped with ASMs having P/N 2060017-103.

We do not agree with AAL's request. The suggested changes are for the retained requirements of AD 2012-20-07. Adding additional requirements to the retained requirements could put operators out of compliance. As previously stated, incorporating the requirements of paragraph (l) of this AD terminates the requirements of paragraph (j) of this AD. Therefore, no change to this AD is needed in this regard.

Spirit Airlines requested that we revise the NPRM to specify that AMOC ANM-116-16-248 is approved as a means of compliance for the actions proposed in paragraph (i) of the proposed AD. Spirit Airlines stated that this AMOC permits the use of Airbus A318/A319/A320/A321 ALS Part 5, Fuel Airworthiness Limitations, Revision 02, dated December 18, 2015.

We agree with Spirit Airlines that AMOC ANM-116-16-248 is approved as a method of compliance for the corresponding provisions of paragraph (i) of this AD. However, no change is necessary to this AD because paragraph (n)(1)(ii) of this AD already specifies that AMOCs approved previously for AD 2012-20-07 are approved as AMOCs for the corresponding provisions of this AD.

We reviewed the available data, including the comments received, and determined that air safety and the public interest require adopting this AD as proposed except for 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.

Airbus has issued A318/A319/A320/A321 ALS Part 5, Fuel Airworthiness Limitations, Revision 01, dated July 9, 2014. The service information describes fuel system airworthiness limitations. 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.

We estimate that this AD affects 953 airplanes of U.S. registry.

The actions required by AD 2012-20-07 and retained in this AD take about 4 work-hours per product, at an average labor rate of $85 per work-hour. Based on these figures, the estimated cost of the actions that are required by AD 2012-20-07 is $340 per product.

We also estimate that it would take about 1 work-hour 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 $81,005, or $85 per product.

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

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

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

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

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

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 737-100, -200, -200C, -300, -400, and -500 series airplanes. The NPRM published in the Federal Register on November 30, 2015 (80 FR 74731) (“the NPRM”). The NPRM was prompted by an evaluation by the DAH indicating that the aft pressure bulkhead is subject to WFD. The NPRM proposed to require repetitive inspections of the aft pressure bulkhead web for any cracking, incorrectly drilled fastener holes, and elongated fastener holes, and related investigative and corrective actions, if necessary. We are issuing this AD to detect and correct fatigue cracking of the aft pressure bulkhead web at the “Y”-chord, which could result in reduced structural integrity of the airplane and rapid decompression of the fuselage.

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.

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

We agree with the commenter. We have redesignated paragraph (c) of the NPRM as paragraph (c)(1) in this final rule and added a new paragraph (c)(2) to state that STC ST01219SE does not affect the mitigating action or accomplishment of the actions required by this final rule. Therefore, for airplanes on which STC ST01219SE is installed, “a change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.71.

Mr. Cas Lausberg stated that the subject of the NPRM is addressed in AD 99-08-23, Amendment 39-11132 (64 FR 19879, April 23, 1999) (“AD 99-08-23”), which was superseded by AD 2012-18-13 R1, Amendment 39-17429 (78 FR 27020, May 9, 2013) (“AD 2012-18-13 R1”). The commenter questioned the need for the new NPRM.

We agree to provide clarification. As stated in the “Discussion” section of the NPRM, this final rule is being issued as part of the overall joint effort by Boeing and the FAA to satisfy requirements of the FAA's WFD final rule (75 FR 69746, November 15, 2010), which became effective on January 14, 2011. The inspections required by AD 99-08-23 and AD 2012-18-13 R1 do not address WFD concerns. However, Boeing Alert Service Bulletin 737-53A1214, Revision 5, dated January 30, 2015, addresses WFD with new inspection requirements, which incorporate a compliance time (threshold) corresponding to the WFD inspection start point (ISP) and shorter repetitive intervals where indicated. These requirements are included in this AD. We have not changed this AD in this regard.

Boeing requested that the term “global fatigue damage” be changed to “widespread fatigue damage” in the NPRM. Boeing stated that this is the first time it has seen the term “global” used to describe WFD. Boeing commented that it is better not to introduce a new term.

We agree with the commenter. Although the “Discussion” section of the proposed rule is not carried over into the final rule, we agree that the term “global fatigue damage” should not be introduced as a new term. We have not changed this AD in this regard.

Boeing requested that we change the wording in the “Differences Between This Proposed AD and the Service Information” paragraph of the NPRM, which referred to WFD-based inspections specified in certain tables of Boeing Alert Service Bulletin 737-53A1214, Revision 5, dated January 30, 2015. The NPRM stated that the WFD-based inspections would affect only Group 2 airplanes because Group 1 airplanes will reach their LOV before the compliance times specified “in tables 9, 10, and 11” of Boeing Alert Service Bulletin 737-53A1214, Revision 5, dated January 30, 2015.

Boeing stated that the inspections listed in tables 9, 10, and 11 of Boeing Alert Service Bulletin 737-53A1214, Revision 5, dated January 30, 2015, also include non-WFD inspections that are required prior to the ISP threshold of 76,000 cycles. Boeing stated that, therefore, it is not true to say that Group 1 airplanes will reach their limit of validity before the compliance times specified in tables 9, 10 and 11.

We partially agree with the commenter. Although the “Differences Between This Proposed AD and the Service Information” paragraph of the proposed rule is not carried over into the final rule, we agree to provide clarification.

Since AD 2012-18-13 R1 was issued, Boeing issued Alert Service Bulletin 737-53A1214, Revision 5, dated January 30, 2015. Affected airplanes are now divided into two groups: Group 1, line numbers 1 through 2565 inclusive; and Group 2, line numbers 2566 through 3132 inclusive. Boeing's evaluation determined that inspections to address WFD concerns are required for the aft pressure bulkhead web at the “Y” chord at an ISP of 76,000 total flight cycles. Since Group 1 airplanes will reach their LOV of 75,000 total flight cycles (34,000 total flight cycles for line numbers 1 through 291 inclusive), which is prior to this ISP, no WFD inspections are provided for those airplanes. For Group 2 airplanes, which have an LOV of 85,000 total flight cycles, new tables 9, 10, and 11 of Boeing Alert Service Bulletin 737-53A1214, Revision 5, dated January 30, 2015, include inspections to address WFD. We have not changed this AD in this regard.

Boeing requested that we clarify the applicability of the proposed AD. Boeing stated that Model 737-100, -200, and -200C airplanes should be removed from the “Applicability” paragraph. Boeing stated that the Group 2 airplanes only include Model 737-300, -400, and -500 airplanes.

We agree with the commenter's request for the reasons stated above. We have revised the applicability in paragraph (c) of this AD to remove Model 737-100, -200, and -200C series airplanes and revised the SUMMARY section to specify certain Model 737-300, -400, and -500 series airplanes.

Boeing requested that we change the wording for the terminating action in paragraph (j) of the proposed AD. Boeing stated that the paragraph should specify that the terminating action applies only to Group 2 airplanes. Boeing stated that specifying Group 2 airplanes clearly states the intent of the terminating action.

We agree with the commenter's request for the reasons stated above. We have expanded the structure of paragraph (j) of this AD accordingly. In addition, we have clarified that the terminating action does not apply to stringer S-5L to S-7L and stringer S-5R to S-9R, as specified in AD 2012-18-13 R1 and Boeing Alert Service Bulletin 737-53A1214, Revision 5, dated January 30, 2015.

All Nippon Airways (ANA) requested that we revise the inspection requirements in the proposed AD for Group 2 airplanes. ANA requested that we either mandate the inspections in tables 10 and 11 of Boeing Alert Service Bulletin 737-53A1214, Revision 5, dated January 30, 2015, for only Group 2 airplanes with 76,000 flight cycles and more, or create a new NPRM to supersede AD 2012-18-13 R1 to mandate all inspection requirements using Boeing Alert Service Bulletin 737-53A1214, Revision 5, dated January 30, 2015. ANA stated that if a new proposed rule is created, it requests that credit be given for any previously approved AMOCs to AD 2012-18-13 R1, to reduce additional burden for operators and the FAA.

We agree with the commenter's request for the reasons stated by the commenter. The intent of this final rule is to address the WFD concerns in accordance with the FAA's WFD final rule (75 FR 69746, November 15, 2010). We have revised paragraphs (g), (h), and (l) of this AD accordingly.

In paragraphs (g) and (h) of this AD, we have clarified the compliance times by explicitly stating the compliance times instead of referring to the compliance tables in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1214, Revision 5, dated January 30, 2015.

The actions in paragraph (h) of the proposed AD states to do detailed and eddy current inspections of the aft pressure bulkhead web from the forward or aft side of the bulkhead for any cracking, incorrectly drilled fastener hole, and elongated fastener hole. In this AD, we have clarified the actions by providing the operators the option of doing detailed and LFEC inspections from the aft side of the aft pressure bulkhead, or doing a detailed and HFEC inspections from the forward side of the aft pressure bulkhead, for any cracking, incorrectly drilled fastener hole, and elongated fastener hole.

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

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

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

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

We reviewed Boeing Alert Service Bulletin 737-53A1214, Revision 5, dated January 30, 2015. The service information describes procedures for, among other actions, repetitive inspections of the aft pressure bulkhead web for any cracking, incorrectly drilled fastener holes, and elongated fastener holes; and related investigative and corrective actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 122 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

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 A330-200 and -300 series airplanes; and Model A340-200 and -300 series airplanes. The NPRM published in the Federal Register on February 18, 2016 (81 FR 8160) (“the NPRM”). The NPRM was prompted by a determination that the compliance times for certain post-repair inspections and certain ADLs must be reduced in order to address fatigue. The NPRM proposed to require identifying any repairs and ADLs used to assess or control any structural damage on certain structural areas, and corrective action if necessary. We are issuing this AD to prevent fatigue damage on primary structure and structural repairs, which could result in reduced structural integrity 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 AD 2015-0101R1, dated June 12, 2015 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A330-200 and -300 series airplanes; and Model A340-200 and -300 series airplanes. The MCAI states:

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-2016-0465.

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.

Delta Air Lines (DAL) and American Airlines requested that we revise the proposed AD to include a physical inspection of affected areas of the airplane in case the maintenance records are unavailable or inconclusive as an alternative to the records check specified in paragraph (g) of the proposed AD. DAL pointed out that their maintenance record search for applied SRM ADLs had inconclusive results. DAL also pointed out that other U.S. operators may not be able to comply with the proposed AD by performing a maintenance records check. American Airlines provided no further justification.

We agree that an alternative inspection method in lieu of a maintenance records check could be appropriate. When the repair records and/or applied SRM ADL are unavailable or inconclusive, then an alternative method of inspection can be done 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). We have revised paragraph (g) of this AD to include an alternative method of inspection in the case of inconclusive or unavailable records.

We have also revised paragraph (h)(2) of this AD to clarify the affected repairs for that paragraph.

We have converted Tables 1 and 2 of the proposed AD into text. These changes are for formatting purposes only and do not change the intent of those requirements.

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 reviewed the following Airbus service information. The service information describes procedures for updating the airplane repair records with revised thresholds and intervals. These documents are distinct since they apply to different airplane models in different configurations.

• Airbus Service Bulletin A330-53-3232, dated November 4, 2014.

• Airbus Service Bulletin A330-53-3233, dated September 26, 2014.

• Airbus Service Bulletin A330-53-3234, dated December 8, 2014.

• Airbus Service Bulletin A330-53-3235, Revision 01, dated January 14, 2015.

• Airbus Service Bulletin A340-53-4222, dated November 25, 2014.

• Airbus Service Bulletin A340-53-4223, dated September 26, 2014.

• Airbus Service Bulletin A340-53-4224, dated December 15, 2014.

• Airbus Service Bulletin A340-53-4225, Revision 01, dated January 14, 2015.

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.

We estimate that this AD affects 95 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

On July 1, 2016, BEA published a notice of proposed rulemaking that set forth revised reporting criteria for the BE-13, Survey of New Foreign Direct Investment in the United States (81 FR 43126-43130). One comment on the proposed rule was received.

The comment was written by a group representing U.S. asset management firms whose combined assets under management exceed $30 trillion. The letter was generally supportive of the changes to the reporting requirements for private funds, but it did raise two points, one of which lead to a clarification in the reporting requirements for private funds which is outlined below.

One point raised in the letter led to an adjustment to the language of the reporting requirements for private funds used in the proposed rule. As stated in the proposed rule, a foreign-owned U.S. private fund would be required to report on BEA's direct investment surveys if it owns at least 10 percent of an operating company. The letter pointed out that under this standard a private fund may be required to report on direct investment surveys even though in certain cases its foreign parent may own less than 10 percent of an operating company. For example, if a foreign parent owns 10 percent voting interest in a U.S. private fund, and that private fund owns 10 percent of an operating company, under the proposed rule the U.S. private fund would be required to report even though the foreign parent's indirect ownership interest in the operating company is just 1 percent. It was not BEA's intention to include investments of less than 10 percent foreign ownership in the direct investment statistics. In this final rule, BEA has clarified language regarding the private fund reporting requirements to indicate that if the foreign parent of a U.S. private fund does not own through the private fund 10 percent or more of an operating company, the private fund is not required to file.

The letter also indicated that the burden estimate provided on the BE-13 form is understated. BEA's burden estimate is an average across the various BE-13 survey forms and across survey respondents with different levels of complexity and different activities or transactions that may be reported on the survey. BEA has noted the input from the private fund industry on burden estimates.

This final rule amends 15 CFR part 801.7 to set forth the reporting requirements for the BE-13, Survey of New Foreign Direct Investment in the United States.

BEA conducts the BE-13 survey under the authority of the International Investment and Trade in Services Survey Act (22 U.S.C. 3101-3108).

The BE-13 survey collects data on the acquisition or establishment of U.S. business enterprises by foreign investors and the expansion of existing U.S. affiliates of foreign companies to establish a new facility where business is conducted. The data collected on the survey are used to measure the amount of new foreign direct investment in the United States, assess the impact on the U.S. economy, and based on this assessment, make informed policy decisions regarding foreign direct investment in the United States. Foreign direct investment in the United States is defined as the ownership or control, directly or indirectly, by one foreign person (foreign parent) of 10 percent or more of the voting securities of an incorporated U.S. business enterprise, or an equivalent interest of an unincorporated U.S. business enterprise, including a branch.

BEA will make the survey available via eFile, BEA's electronic filing system. Notifications will be mailed to respondents as BEA becomes aware of a potentially reportable investment or when annual cost updates are needed. A response is required whether or not the respondent is contacted by BEA. The forms are due no later than 45 days after the acquisition is completed, the new U.S. business enterprise is established, the expansion is begun, the cost update is requested, or a notification letter is received from BEA by a U.S. business enterprise that does not meet the filing requirements for the survey.

BEA amends the reporting requirements for certain private funds that file BEA's surveys of foreign direct investment in the United States: the BE-605, Quarterly Survey of Foreign Direct Investment in the United States; BE-15, Annual Survey of Foreign Direct Investment in the United States; and the BE-13, Survey of New Foreign Direct Investment in the United States. The BE-12, Benchmark Survey of Foreign Direct Investment in the United States, will also be affected by this change but will be addressed in a proposed rule in 2017.

BEA, in cooperation with the U.S. Treasury Department, will instruct reporters of investments in private funds that meet the definition of direct investment (that is, ownership by one person of 10 percent or more of the voting interest of a business enterprise) but display characteristics of portfolio investment (specifically, investors who do not intend to control or influence the management of an operating company) to report through the Treasury International Capital (TIC) reporting system, where other related portfolio investments are already being reported, and not to report on BEA's direct investment surveys. Direct investment in operating companies, including investment by and through private funds, will continue to be reported to BEA. This change aligns the U.S. direct investment and portfolio investment data more closely with the intent of the investment with respect to management control. In addition, it reduces burden for respondents, many of whom now report both to the TIC reporting system and to BEA's direct investment reporting system. Under the revised regulations, U.S. affiliates that are private funds but whose foreign parents do not own through the private fund 10 percent or more of the voting interest of another business enterprise that is not a private fund or holding company, will no longer be required to report on BEA surveys of foreign direct investment in the United States.

The changes also amend the regulations and the survey forms for the BE-13 survey. These amendments include changes in reporting requirements and questionnaire design and instructions as well as data items collected. The following changes are specific to the BE-13.

BEA will combine Forms BE-13A, Report for Acquisition of a U.S. Business Enterprise That Remains a Separate Entity, and BE-13C, Report for Acquisition of a U.S. Business Enterprise That is Merged With an Existing U.S. Affiliate, into one form and discontinue the use of Form BE-13C. These acquisitions should be filed on Form BE-13A along with acquired U.S. business enterprises that will operate as a separate legal entity after the acquisition. The revised Form BE-13A will be a report for a U.S. business enterprise when a foreign entity acquires a voting interest (directly, or indirectly through an existing U.S. affiliate) in that U.S. business enterprise (including segments, operating units, or real estate) and (1) the total cost of the acquisition is greater than $3 million; and (2) by this acquisition, the foreign entity now owns at least 10 percent of the voting interest (directly, or indirectly through an existing U.S. affiliate) in the acquired U.S. business enterprise.

BEA will add an instruction to eliminate the requirement to file two forms—Form BE-13B (establishment) and Form BE-13A (acquisition)—when a new U.S. business enterprise is established to facilitate a single U.S. acquisition that takes place within 30 days. The U.S. business enterprise will be asked to consolidate the new U.S. business enterprise with the acquired U.S. business enterprise and submit a single Form BE-13A. A question will be added to Form BE-13A to capture the names of both the established and acquired entities in this scenario.

BEA will clarify the reporting requirements for Form BE-13E, Cost Update for Projects Originally Reported on Forms BE-13B or BE-13D, by removing the reference to the established or expanded business enterprise still being under construction. At least one Form BE-13E must be filed for each reported BE-13B or BE-13D form to obtain actual costs since the cost data provided on these forms may not be final when filed.

BEA will not change the reporting requirements for Form BE-13D, Report for the Expansion of an Existing U.S. Affiliate, or Form BE-13 Claim for Exemption.

BEA will modify the questions on existing U.S. affiliates in the ownership chain between the acquired or established U.S. business enterprise and the foreign parent to narrow the focus to the specific affiliates needed for analysis and to improve the sample frames of the other BEA surveys.

BEA will restructure and rephrase the cost questions to more accurately capture any funding from the affiliated foreign group to facilitate the new foreign direct investment and to determine whether the funding was in the form of a loan or capital contribution.

BEA will add an instruction on Forms BE-13B and BE-13D to direct U.S. businesses to report total expected costs by year based on their fiscal year end.

BEA will add an instruction on Form BE-13 Claim for Exemption to direct U.S. businesses that are reporting expansions to skip the questions asking for U.S. affiliates' total assets, total liabilities, and net income (loss). These questions are not asked on Form BE-13D, Report for the Expansion of an Existing U.S. Affiliate, where expected costs are greater than $3 million, so they are not required for expansions with expected costs of $3 million or less.

BEA will eliminate “lease” and “construction” from the list of expected costs on Forms BE-13B and BE-13D. BEA will continue to collect data on land; property, plant, and equipment (PP&E); intellectual property rights; fees, taxes, permits, and licenses; and other costs.

BEA will add a question to Form BE-13D to collect the name of the expanding U.S. affiliate and to Form BE-13 Claim for Exemption to collect the name of the acquired, established, or expanding U.S. business enterprise.

BEA will add a question to Form BE-13 Claim for Exemption to collect the state where the new investment is located in cases when this form is being filed to report a new investment that met all the requirements for filing on Forms BE-13A, BE-13B, or BE-13D except the $3 million reporting threshold.

This final rule has been determined to be not significant for purposes of E.O. 12866.

This final rule does not contain policies with Federalism implications sufficient to warrant preparation of a Federalism assessment under E.O. 13132.

The collection-of-information in this final rule was submitted to the Office of Management and Budget (OMB) pursuant to the requirements of the Paperwork Reduction Act (PRA). OMB approved the information collection under OMB control number 0608-0035.

Notwithstanding any other provisions 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 displays a currently valid OMB control number.

The BE-13 survey is expected to result in the filing of reports from approximately 2,550 U.S. affiliates each year. The respondent burden for this collection of information will vary from one company to another, but is estimated to average 1.1 hours per response, including time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Thus the total respondent burden for this survey is estimated at 2,860 hours, compared to 2,160 hours for the previous BE-13 survey estimate. The increase in burden hours is due to the increase in the number of respondents expected to file. The previous estimate of the number of respondents was made before the survey was launched; the revised estimate is based on two years of data collection.

Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in the final rule should be sent to both BEA via email at [email protected], and to OMB, O.I.R.A., Paperwork Reduction Project 0608-0035, Attention PRA Desk Officer for BEA, via email at [email protected].

The Chief Counsel for Regulation, Department of Commerce, certified at the proposed rule stage to the Chief Counsel for Advocacy, Small Business Administration, under the provisions of the Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), that this final rule will not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding the certification or the economic impact of the rule more generally aside from the comment regarding the burden estimate. No final regulatory flexibility analysis was prepared.

For reasons set forth in the preamble, BEA amends 15 CFR part 801 as follows:

The Department of State (State) regulation on the revocation of nonimmigrant visas is at 22 CFR 41.122. State is amending 22 CFR 41.122 in support of a joint program with the Department of Homeland Security (DHS) that requires nonimmigrant aliens who hold a passport issued by an identified country containing a U.S. nonimmigrant visa of a designated category to periodically provide required information to DHS after the receipt of his or her visa of a designated category.

The revised 22 CFR 41.122(b)(3) and the contemporaneous DHS rule amending 8 CFR part 215, subpart B (RIN 1651-AB08), are creating the Electronic Visa Update System (EVUS). As provided in 8 CFR part 215, subpart B, EVUS is an online information update system. Under EVUS, nonimmigrant aliens who hold a passport issued by an identified country containing a U.S. nonimmigrant visa of a designated category are required to enroll in EVUS by providing information to DHS after the receipt of their visa of a designated category, and periodically thereafter. Successful enrollment in EVUS is evidenced by the receipt of a notification of compliance. Identified countries and designated visa categories are those countries and visa categories that the Secretary of Homeland Security, in consultation with the Secretary of State, has determined will be subject to EVUS enrollment requirements. Identified countries and designated visa categories will be announced in a notice published in the Federal Register. Failure to comply with EVUS after November 29, 2016, will result in an automatic provisional revocation of the visa and will preclude travel to the United States on that visa. The visa will be automatically reinstated upon compliance with the EVUS requirements outlined in 8 CFR 215.24, as established by receipt of a notification of compliance. While, as discussed in the DHS rulemaking, individuals may enroll in EVUS prior to November 29, such enrollment is not required for travel to the United State prior to that date.

This rulemaking provides State the mechanism for visas to be automatically provisionally revoked, and the revocation to automatically be reversed and visas reinstated upon subsequent compliance with EVUS (22 CFR 41.122(b)(3)). The rule also makes other modifications to the visa revocation regulations consistent with the EVUS enrollment requirements.

As discussed in the contemporaneous DHS EVUS rule, DHS is exercising its authority under INA 214(a)(1) and 215(a)(1) (8 U.S.C. 1184(a)(1) and 1185(a)(1)) to require that nonimmigrant aliens who hold a passport issued by an identified country containing a U.S. nonimmigrant visa of a designated category comply with the requirements in 8 CFR part 215, subpart B, and successfully enroll in EVUS by providing certain information to DHS after the receipt of their visas of a designated category as a condition of admission to the United States. Recognizing that holders of such visas who have not complied with the requirements in 8 CFR part 215, subpart B, will not be admitted to the United States under 8 CFR. 214.1(a)(3)(i), State is amending 22 CFR 41.122 to provide for automatic provisional revocation of the visas. Once the visa holder makes the required submission of biographic and other information and successfully enrolls in EVUS, the revocation of the visa will automatically be reversed, and the visa will be valid for travel to the United States.

To implement EVUS, State is amending 22 CFR 41.122 and DHS is contemporaneously amending 8 CFR part 212, 214, 215, and 273.

In 22 CFR 41.122, paragraph (b) is now subdivided. New paragraph (b)(1) describes the force and effect of a provisional revocation generally. The paragraph also describes how a provisional revocation can be reversed and how the revocation authority contained in INA 221(i) (8 U.S.C. 1201(i)) is not limited by this paragraph. Paragraph (b)(2) contains the current language of paragraph (b) with the addition of a new header. New paragraph (b)(3) describes the new process of automatic provisional revocation of U.S. visas of designated categories held by nonimmigrant aliens in a passport issued by an identified country who fail to comply with EVUS after the receipt of his or her visa as required by 8 CFR 215.24.

Paragraph (c) is modified to make a notification exception to visa holders where visas have been automatically provisionally revoked under new paragraph (b)(3) of this section.

Paragraph (d) is modified to make an exception to the requirement of physically cancelling visas for visas that are automatically provisionally revoked by paragraph (b)(3).

Paragraph (e) remains unchanged.

This regulation involves a foreign affairs function of the United States and, therefore, in accordance with 5 U.S.C. 553(a)(1), is not subject to the notice-and-comment rule making procedures set forth in 5 U.S.C. 553.

This final rule is also exempt from notice and comment requirements under the “good cause” exception set forth at 5 U.S.C. 553(b)(3)(B). This rule is critical because it improves the security of granting longer-length visas while also facilitating legitimate travel. Implementation of this rule as soon as possible is necessary to protect the national security of the United States and to prevent the harm that could be caused by the exploitation of longer-length visas.

Under Section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 804), a rule that is likely to result in an annual effect on the U.S. economy of $100,000,000 or more, along with other criteria, is considered a major rule. State concludes that this rule does not meets the criteria for a major rule.

Since this rule is exempt from the notice-and-comment rulemaking provisions of 5 U.S.C. 553, the Regulatory Flexibility Act does not apply to this rulemaking. See 5 U.S.C. 601(2).

Section 202 of the Unfunded Mandates Reform Act of 1995, Public Law 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires agencies to prepare a statement before promulgating any general notice of proposed rulemaking, or any final rule for which a general notice of proposed rulemaking was published, that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. No such burden is being imposed by this rulemaking.

State has reviewed this rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866 and certifies that the benefits of this rulemaking outweigh the costs. State does not consider this rule to be an economically significant regulatory action under Executive Order 12866. In addition, State has considered this rule in light of Executive Order 13563 and affirms that this regulation is consistent with the guidance therein.

This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Nor will the rule have federalism implications warranting the application of Executive Orders No. 12372 and No. 13132.

The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirements of section 5 of Executive Order 13175 do not apply to this rulemaking.

This rule does not impose information collection requirements under the provisions of the Paperwork Reduction Act, 44 U.S.C., Chapter 35.

Accordingly, for the reasons set forth in the preamble, 22 CFR part 41 is amended as follows:

Once signed, a copy of DoD's internal guidance contained in DoD Instruction 1352.01 will be made available on the DoD Directives Web site at https://www.dtic.mil/whs/directives/corres/pdf/135201p.pdf.

It has been determined that publication of this CFR part removal for public comment is impracticable, unnecessary, and contrary to public interest since it is based on removing DoD internal policies and procedures that are publically available on the Department's issuance Web site.

The removal of this rule will be reported in future status updates of DoD's retrospective review plan in accordance with the requirements in Executive Order 13563. DoD's full plan can be accessed at: http://www.regulations.gov/#!docketDetail;D=DOD-2011-OS-0036.

The Department of Defense published a proposed rule in the Federal Register titled “Prohibition of the Sale or Rental of Sexually Explicit Material on DoD Property” on December 22, 2015 (80 FR 79526-79528) for a 60-day public comment period. The Department of Defense received five public comments.

After publishing the proposed rule, DoD began a review of all rules currently being processed to determine if publication in the Federal Register is required. After reconsidering publication of the proposed rule against Administrative Procedure Act criteria and exceptions, DoD decided not to publish a final rule and to remove the previously-codified rule from the CFR. Although DoD has decided to remove the previously-codified rule, we are addressing the public comments received on the proposed rule that published in the Federal Register on December 22, 2015.

Comment 1: I believe this proposed rule is not only an excellent example of agency waste, but a direct infringement of Constitutional Rights that employment by the DoD in any manner cannot supersede. It would appear there are some great ambiguities associated with the definitions that structure this rule. The definition of Lascivious, “lewd and intended or designed to elicit a sexual response,” which also controlling in the definition of sexual elicit material is too ambiguous. If an employee or citizen acting as a representative of the DoD has a foot fetish, will all magazines depicting bare feet be banned? Then the word lewd within the definition, what qualifies as lewd? Is it more or less lewd if in a novel the author describes an intimate evening between a hetero couple or homosexual couple?

Comment 2: So not only can a man or woman be sent into harm's way without questioning the reasons for being sent, but they can't even purchase from the exchange or PX material that is deemed “. . . Lascivious. Lewd and intended or designed to elicit a sexual response.”? And who deems material to be considered prohibited for sale or rent on DoD property? A board of censors. Yes this is censorship, plain and simple. This is an end around the First Amendment of the Constitution. Why? Will this regulation improve our readiness or war fighting capability? No. Will this regulation reduce our readiness or war fighting capability? No. Is there solid, objective science showing that availability of this sort of deemed material leads to other behavior or effects that reduces our readiness or war fighting capability to a greater extent than other products or services offered for sale on DoD property such as alcoholic beverages, tobacco products, sugar-laden pop and greasy carbs-loaded prepared food? Hence making the reason for this regulation by reference to other directives spurious. Will this regulation reduce revenue generated by the retail sales operations of the various branches of our military services? Yes. If so, has this cost been included in the calculation of the cost of compliance with this regulation? No. Is the cost of the time of the members of the board and of the various submissions of material for review and judgement of the board been included in calculating the cost of this regulation? No. What objective criteria is used to determine if material should be submitted for review or upon which a determination be made to offer for sale or not? Not specified. For instance, under the authority of regulation, the purchase of the right to play a song by the DoD said to contain lyrics deemed lascivious, lewd and intended or designed to elicit a sexual response could be prohibited. This would make virtually the entire book of Cole Porter and Frank Sinatra songs subject to possible prohibition under a reasonable understanding of the words lascivious, lewd and the process of eliciting a sexual response. To whom can an appeal be made regarding the decision or judgement of material under this regulation? Re-submission to the same board after 5 years? That's not an appeal, that's a sentence longer than what is typically given to criminals who cause effects of far greater cost in terms of readiness and manpower to our military forces. I am quite certain we can certainly find better things to decide when offering products and services for sale on DoD property? How about lower prices and better quality products?

Comment 3: I am having trouble understanding reasoning and purpose for this rule. This rule would cost “$5,500 annually for the life of the rule to manage the Board.” It seems as if nearly 6 grand annually could be saved and spent on something else that would have greater effects. I do not believe that it is the government's place to say what a person may or may not do within the comfort and privacy of their own home. And by doing so becomes dangerously close to interfering with fundamental liberties that we, as Americans, enjoy. I believe the deterring effects of this rule would do little good. Because those in the military are specifically trained to deal with instances of sexual harassment, military members are already equipped with the information they need to deal with these unique situations. This rule, which would ban the sale or rental of sexually explicit material on property under DoD jurisdiction, in my opinion, could have the opposite intended affect. Just think back to when you were a kid, and your parents told you that you were not allowed to eat ice cream after 9 p.m. What is the one single thing you wanted to do after 9 p.m.? I do not know about you, but I would want to eat ice cream. If you do not draw attention to something in the first place, then it is more likely to go unnoticed. Therefore, I see little persuasive reasoning for the passage of this rule. Not only does it waste money, but also it is also a waste of time and valuable resources that could be better spent elsewhere.

Comment 4: This proposed rule seems to be a waste of money, no matter how small the amount in controversy is. With a growing budget deficit, and no end in sight, all possible means should be taken to tighten the purse strings and prevent excess spending. Furthermore, I am troubled by any proposal which cannot state for certainty that the cost will not go up in the future. Second, there does not seem to be any identified criteria for determining what can and can't be sold. It seems to be what is considered prohibited will turn on whoever is making the decision at that time. This will lead to inconsistent enforcement and a regulation that changes over time.

Comment 5: This rule is just plain silly. Aside from wasting money I don't see any value this rule would have. Just because military members have access to sexually explicit material does not mean they will turn into sexual predators. I believe the opposite is true. Military members have extensive training on sexual harassment, and have an effective method to report sexual misconduct. As stated above, this rule would be a waste of money.

Response: DoD thanks each commenter for their comments. However, no changes will be made to DoD's policy because it has been mandated by Congress through 10 U.S.C. 2495b. Based upon the information in the SUMMARY and SUPPLEMENTARY INFORMATION sections of this rule, we are removing the rule from the Code of Federal Regulations. Nevertheless, DoD's initial guidance contained in DoD Instruction 4105.70, which may be updated from time to time, remains in effect and is available at http://www.dtic.mil/whs/directives/corres/pdf/410570p.pdf.

DoD has determined that publication for public comment of this CFR part removal is impracticable, unnecessary, and contrary to public interest, since removal from the CFR will remove DoD internal policies and procedures that are publically available on the DoD issuance Web site.

The removal of this rule will be reported in future status updates of DoD's retrospective review in accordance with Executive Order 13563, “Improving Regulation and Regulatory Review.” DoD's full plan can be accessed at: http://www.regulations.gov/#!docketDetail;D=DOD-2011-OS-0036.

DoD internal guidance concerning the presentation of DoD-related scientific and technical papers at meetings will continue to be published in DoD Instruction 5230.27. Once the revision of DoD Instruction 5230.27 is signed, a copy will be made available at http://www.dtic.mil/whs/directives/corres/pdf/523027p.pdf.

It has been determined that publication of this CFR part removal for public comment is impracticable, unnecessary, and contrary to public interest since it is based on removing DoD internal policies and procedures that are publically available on the Department's issuance Web site.

The removal of this rule will be reported in future status updates of DoD's retrospective review plan in accordance with the requirements in Executive Order 13563. DoD's full plan can be accessed at: http://www.regulations.gov/#!docketDetail;D=DOD-2011-OS-0036.

A copy of the current DoD Directives may be obtained from the DoD Directives Division Web site at the following Web addresses: http://www.dtic.mil/whs/directives/corres/pdf/512501p.pdf, http://www.dtic.mil/whs/directives/corres/pdf/511805p.pdf, http://www.dtic.mil/whs/directives/corres/pdf/510555p.pdf, http://www.dtic.mil/whs/directives/corres/pdf/514504p.pdf.

Moreover, it has been determined that publication of these CFR part removals for public comment is impracticable, unnecessary, and contrary to public interest since it is based on removing DoD internal policies and procedures that are publically available on the Department's issuance Web site.

On August 25, 2016, the Coast Guard published a temporary deviation entitled “Drawbridge Operation Regulation; Chester River, Chestertown, MD” in the Federal Register (81 FR 58846). Under that temporary deviation, the bridge would remain in the closed-to-navigation position from 8 p.m. on September 6, 2016 to 6 a.m. on October 30, 2016. The bridge would open for vessels on signal during the scheduled closure periods, if at least 24 hours notice were given.

The Maryland State Highway Administration, who owns and operates the S213 (MD 213) Bridge, has requested a modified temporary deviation from the currently published deviation to extend the time needed to complete the bridge painting project.

Under this modified temporary deviation, the bridge will be maintained in the closed-to-navigation position from 6 a.m. on October 30, 2016 through 6 a.m. on November 20, 2016. The bridge is a double bascule draw bridge and has a vertical clearance in the closed position of 12 feet above mean high water.

The Chester River is used by recreational vessels. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway in publishing this temporary deviation.

For the duration of the bridge maintenance, vessels will not be allowed to pass through the bridge due to placement of barges and equipment in the main navigation span. The bridge will open for vessels on signal during the scheduled closure period, if at least 24 hours notice is given. The bridge will not be able to open for emergencies and there is no immediate alternative route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transit to minimize any impact caused by the temporary deviation.

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

The Virginia Department of Transportation, who owns and operates the Berkley (U.S. 460/S.R. 337) Bridge across the Elizabeth River, mile 0.4, at Norfolk, VA, has requested a temporary deviation from the current operating regulation set out in 33 CFR 117.1007(b), to facilitate testing of the emergency drive motors on both spans of the bridge.

Under this temporary deviation, the bridge will remain in the closed-to-navigation position from 4 a.m. to 10 a.m. on October 30, 2016. The drawbridge has two spans, each with double-leaf bascule draws, and both spans have a vertical clearance in the closed-to-navigation position of 48 feet above mean high water.

The Berkley Bridge is used by recreational vessels, tug and barge traffic, fishing vessels, and small commercial vessels. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway in publishing this temporary deviation.

Vessels able to pass through the bridges in the closed position may do so at anytime. The bridge spans will not be able to open in case of an emergency and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterway through our Local Notice and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

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

On June 1, 2016, the Coast Guard received formal notification from the American Samoa Government that the 2016 Fautasi Ocean Challenge is scheduled to occur in Pago Pago Harbor on November 11 and 25, 2016. This annual event has strengthened local tradition for over a century. The event will consist of a series of races entirely within Pago Pago Harbor between longboats with paddling crews of 32-48 persons each. It is anticipated that a large number of spectator pleasure crafts will be drawn to the event. Spectator vessels and commercial vessel traffic will pose a significant safety hazard to the longboats, longboat crew members, and other persons and vessels involved with the event.

In response, on August 29, 2016, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zone; Pago Pago Harbor, American Samoa (81FR59163). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this fireworks display. During the comment period that ended September 28, 2016, we received one comment.

We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. The Coast Guard did not receive notification of this event in sufficient time to conduct a review and publish the final rule 30 days before the event is scheduled. Thus, delaying the effective date of this rule to wait for the 30 day post-publication period to run would be impracticable because it would inhibit the Coast Guard's ability to protect participants, mariners, and vessels from the hazards associated with this event.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Honolulu (COTP) has determined that potential hazards associated with anticipated large number of spectator pleasure crafts and commercial traffic on November 11 and 25, 2016 will pose a significant safety hazard to the longboats, longboat crew members, and other persons and vessels involved with the event. The purpose of this rule is to minimize vessel traffic in Pago Pago Harbor before, during, and after the scheduled event to safeguard persons and vessels during the longboat races.

As noted above, we received one comment on our NPRM published on August 29, 2016. To address the concern specified during the commenting period, the U.S. Coast Guard will conduct an outreach to the local community regarding the temporary safety zone. Additionally, the maritime community will be notified of the temporary safety zone through publication of both marine safety information broadcast and local notice to mariners, and a broadcast notice to mariners via VHF-FM marine channel 16. Port meetings held by the Harbor Master prior to the event will inform and educate the maritime community and industry about the temporary safety zone and any concerns regarding possible affects to the local economy and travel. No other terminals or locations will be available within the temporary safety zone during the duration of the event.

This rule establishes a safety zone on November 11 and November 25, 2016. The safety zone will close Pago Pago Harbor to all vessels not authorized by the COTP for entry into, transiting, or anchoring within the port for the duration of the event. The COTP will authorize registered participants, support vessels, and enforcement vessels to enter and remain in the zone. No other vessels will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The harbor will remain closed until the Coast Guard issues an “All Clear” after races conclude and the harbor is deemed safe for normal operations. This rule will not require any vessel already moored to evacuate the port, provided that they are moored in such a way that they do not interfere with the progress of the event.

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

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

As discussed above, the Coast Guard will conduct an outreach to the local community regarding the temporary safety zone. The Coast Guard will issue a Broadcast Notice to Mariners with information pertaining to the safety zone via VHF-FM marine channel 16. Additionally, the maritime community will be notified of the temporary safety zone through publication of a marine safety information broadcast and local notice to mariners. Port meetings held by the Harbor Master prior to the event will inform and educate the maritime community and industry about the temporary safety zone. These measures are being employed to help the maritime community better plan and prepare for the event.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

Some owners or operators of vessels intending to transit the safety zone may be small entities and may not be authorized to do so. This rule would not create significant economic impact on a substantial number of these entities. Moreover, the rule would allow vessels to seek permission from the Coast Guard to enter the safety zone. Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

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

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

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

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

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

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

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

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

I. Background

On May 26, 2015 (80 FR 30015), EPA published a notice of proposed rulemaking (NPR) for the State of Delaware. At the request of a commenter, EPA published a notice reopening the comment period for the NPR on July 15, 2015 (80 FR 41449), which allowed the public to comment on the May 26, 2015 NPR until August 14, 2015. In the NPR, EPA proposed disapproval of DNREC's SIP revision because the submittal does not satisfy the requirements of CAA sections 172(c)(5) and 173(c)(1) or the federal implementing regulations in 40 CFR 51.165 and in 40 CFR part 51, appendix S,1 which establish the criteria under which the owner or operator of a new or modified major stationary source must obtain the required emission offsets “from the same source or other sources in the same nonattainment area” with limited exceptions, for Delaware's nonattainment NSR preconstruction permitting program. In addition, EPA proposed disapproval of the SIP revision because Delaware exercises authorities that are reserved for EPA under section 107 of the CAA. The formal SIP revision was submitted by Delaware on October 15, 2013.

The SIP revision consists of changes to 7 DE Admin. Code 1125 (herein referred to as 7 DNREC 1125 or Regulation 1125), Requirements for Preconstruction Review, sections 2.5.5 and 2.5.6, Emission Offset Provisions. First, Delaware's revised regulation enables sources in Delaware seeking NSR permits to obtain emission offsets from sources located in other areas, including areas outside of the State of Delaware, irrespective of the areas' nonattainment status as compared to Delaware's nonattainment status for the same national ambient air quality standard (NAAQS). Second, the revised regulation also permits sources seeking NSR permits in Delaware to obtain emissions offsets from areas without a determination that the other areas “contribute to a violation” of the NAAQS in Delaware where a source seeking a NSR permit would be located, as required in CAA section 173 and its implementing regulations. The language in section 2.5.6 in 7 DNREC 1125 provides that sources can obtain emission offsets “in the nonattainment area which the source is located which shall specifically include any area in the States of Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Michigan, Missouri, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia and Wisconsin.”

Finally, the revised regulation language allows “the Department” to determine the areas in which owners or operators can acquire emission offsets, regardless of the attainment status of those areas. Specifically, Delaware proposed language for the SIP that “the Department may consider any area in the following states as having the same nonattainment classification as the area of Delaware where the offsets are used: Connecticut, Delaware, Illinois, Indiana, Kentucky, Maryland, Michigan, Missouri, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Tennessee, Virginia, West Virginia and Wisconsin.”

Other specific requirements of 7 DNREC 1125, Requirements for Preconstruction Review, sections 2.5.5 and 2.5.6, Emission Offset Provisions and the rationale for EPA's disapproval are explained in the NPR and will not be restated here. See 80 FR 30015 (May 26, 2015). EPA received three sets of comments on the NPR. A summary of the comments and EPA's responses are provided in Section III of this document.

During the reopened public comment period for the May 26, 2015 proposed rule, EPA received three sets of comments, which are summarized and addressed here. The comments were submitted by DNREC (herein referred to as Delaware), the New Jersey Department of Environmental Protection (herein referred to as New Jersey), and the Delaware State Chamber of Commerce (DSCC).

Comment 1: Generally, Delaware and New Jersey noted that unhealthy levels of ground-level ozone continue to impact their states years after the passage of the CAA and after they have implemented several rounds of voluntary and required emissions reduction strategies. The States allege ground-level ozone and precursor emissions are pervasive and readily transported. Delaware and New Jersey stated that they cannot attain the 75 parts per billion (ppb) ozone NAAQS due to emissions from other states' pollution and not their own, as they have done all they can to control large and small sources throughout their States.

Response 1: EPA appreciates Delaware's and New Jersey's interest in addressing interstate transport of ozone pollution and other air quality concerns through implementation of the CAA requirements. While it is not relevant to the approvability of Delaware's revisions to 7 DNREC 1125, sections 2.5.5 and 2.5.6, EPA recognizes both Delaware and New Jersey have implemented various regulations to address the ozone NAAQS in their respective States. Delaware's and New Jersey's commitment, as well as other states' commitments, has had a beneficial impact on the air quality in areas designated nonattainment for the 2008 ozone NAAQS including the Philadelphia-Wilmington-Atlantic City Area, the PA-NJ-MD-DE Area (Philadelphia Area) and the Seaford, DE Area, for example. Currently, the Philadelphia Area is meeting the 2008 ozone NAAQS of 75 ppb with preliminary 2013-2015 air quality monitoring (AQM) data showing a design value of 75 ppb.2 Additionally, on May 4, 2016, EPA made a final determination that the Seaford, DE marginal nonattainment area attained the 2008 ozone NAAQS by the applicable attainment date of July 20, 2015, with a design value of 74 ppb, pursuant to section 181(b)(2)(A) of the CAA and 40 CFR 51.1103. See 81 FR 26701.

Comment 2: Delaware discussed efforts they have made to “prod EPA” into addressing interstate transport through a petition under CAA section 126 and a joint state petition asking EPA to enlarge the Ozone Transport Region (OTR) under CAA section 176A. Delaware stated that EPA has failed to respond to those petitions despite statutory deadlines.

Response 2: EPA acknowledges that Delaware previously submitted a CAA section 126 petition seeking emissions reductions from large electric generating units in a number of upwind states in order to reduce the contributions from their emissions to fine particulate matter (PM2.5) and ozone problems in Delaware. Additionally, EPA acknowledges that a number of states, including Delaware, submitted a petition under CAA section 176A requesting that the EPA add additional states to the OTR that was established under section 184 of the CAA. EPA is reviewing the petitions separately and is not acting on those petitions in this action. Delaware's comments are not germane to EPA's disapproval of the Delaware October 15, 2013 SIP revision and as such no further response is provided.

Comment 3: Generally, Delaware and New Jersey noted their extensive efforts to regulate sources in their respective states in order to attain the NAAQS. As a result, commenters expressed concerns about economic burdens imposed on their citizens, business, and industry locating in both Delaware and New Jersey. More specifically, Delaware asserted that it is more expensive for industry to locate in its State versus nearby locations which EPA has classified as “attainment/unclassifiable” despite evidence showing that those areas cause and contribute to Delaware's nonattainment status. The DSCC also noted it will become more expensive for new industry to locate within or to expand within Delaware compared to locating or expanding business in other areas that are attainment/unclassifiable especially as Delaware is small and its sources are well controlled.

Response 3: EPA appreciates the commenters' continued efforts to regulate sources in their States to meet NAAQS, as well as their concerns with respect to economic burdens on citizens, business, and industry; however, this comment is not germane to EPA's current action disapproving Delaware's October 15, 2013 SIP revision. EPA evaluated Delaware's October 15, 2013 SIP revision submittal in accordance with requirements for NSR permitting programs in CAA sections 172 and 173 and in 40 CFR 51.165 and found the SIP revision submittal did not meet those requirements as discussed in the NPR. EPA notes that the NAAQS for each criteria air pollutant are established to provide protection for the nation's public health and the environment. Additionally, EPA's NSR program was specifically designed to allow for responsible economic growth while at the same time allowing states to achieve and maintain the NAAQS. As the comments are not germane to the reasons for EPA's disapproval of this SIP, no further response is provided.

Comment 4: Delaware discussed design values at some Delaware air quality monitors and stated that based in part upon EPA data, a large group of upwind states create the pollution that is causing Delaware's nonattainment and that those states should reduce their emissions in order for Delaware to attain and maintain the NAAQS.

Response 4: As noted in a previous response to comment, Delaware currently has areas attaining the 2008 ozone NAAQS, which would indicate that emissions reductions have occurred and have had a beneficial impact on Delaware's air quality.3 Nonetheless, EPA readily acknowledges the role interstate transport of precursors to ozone pollution plays in the efforts of downwind areas to attain and maintain the NAAQS. To that end, EPA has taken a number of steps to ensure implementation of CAA section 110(a)(2)(D), or the “good neighbor” provision, which addresses interstate pollution, including the NOX (oxides of nitrogen) SIP Call, the Clean Air Interstate Rule (CAIR), and the Cross-State Air Pollution Rule (CSAPR). Most recently, EPA promulgated an update to CSAPR specifically to address interstate pollution with respect to the 2008 ozone NAAQS with tightened NOX budgets designed to achieve emission reductions in upwind states before the moderate area attainment date of July 2018. See Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS, Final Rule, (signed September 7, 2016, publication pending); 4 Proposed Rule, 80 FR 46271 (August 8, 2015); and Notice of Data Availability (NODA), 80 FR 75706 (December 3, 2015). As noted above, however, comments regarding the interstate transport obligations of other states are not germane to EPA's current action disapproving Delaware's October 15, 2013 SIP revision.

Comment 5: Delaware noted that EPA went against the State's designation recommendations and adopted smaller 2008 ozone nonattainment areas that include parts of Delaware but not certain upwind states, which triggered various provisions of the CAA in part D of title I, including the applicability of nonattainment NSR permitting, in each of the three counties in Delaware.

Response 5: As noted in our May 26, 2015 NPR, pursuant to section 107 of the CAA, New Castle and Sussex Counties, Delaware were designated by EPA for the 2008 ozone NAAQS as “marginal” nonattainment under 40 CFR part 81, while Kent County was designated as “unclassifiable/attainment.” See 77 FR 30088 (May 21, 2012). New Castle County is a portion of the Philadelphia Area for the 2008 ozone NAAQS. Upon designation, a nonattainment area for ozone is required to meet the plan submission requirements under section 182 of the CAA (in subpart 2 of part D of title I of the CAA) for its nonattainment area classification (marginal, moderate, serious, severe, or extreme) as well as the general SIP planning requirements in sections 172 and 173 of subpart 1 of part D of title I. The State of Delaware is also part of the OTR, as established in CAA section 184(a). Therefore, at a minimum, the entire State of Delaware is required to meet the plan submission requirements for a moderate nonattainment area classification as specified in CAA sections 182(b) and 184(b), regardless of the attainment classification for areas in the State. Moderate area classification plan requirements include the emissions offset provisions within section 173 of the CAA and within its implementing regulations. Delaware's comment regarding the size of the nonattainment area is irrelevant to whether Delaware's regulations for NSR emissions offsets meet CAA requirements. The time for Delaware to challenge EPA's ozone designations for the 2008 ozone NAAQS has passed. As explained in the NPR, Delaware's revisions to 7 DNREC 1125, sections 2.5.5 and 2.5.6 on their face do not meet CAA requirements, and, thus, no further response is provided.

Comment 6: Delaware asserted that EPA did not consider its October 15, 2013 SIP revision submittal because EPA did not refer to any of it in the proposed disapproval. Delaware also stated its arguments in the comments were largely repeating information presented in the October 15, 2013 SIP submittal. Delaware stated NSR was its only tool to achieve further reductions of ozone within the state as Delaware has no ability to regulate sources in other states.

Response 6: EPA does not agree with Delaware's characterization that EPA did not consider or evaluate the October 15, 2013 SIP revision submittal before publishing a NPR proposing disapproval of revisions to 7 DNREC 1125, Requirements for Preconstruction Review, sections 2.5.5 and 2.5.6, Emission Offset Provisions. While EPA did not cite to specific language or provisions within the October 15, 2013 SIP submission in the May 26, 2015 NPR, nothing in the CAA nor its implementing regulations requires EPA to cite to the SIP submittal when acting to approve or disapprove pursuant to section 110 of the CAA. See 80 FR 30015. EPA reviewed and evaluated all information submitted by Delaware to EPA in the October 15, 2013 SIP submittal and compared that information and the regulations to the requirements of the CAA and its implementing regulations. As discussed in the NPR, EPA found that 7 DNREC 1125, sections 2.5.5 and 2.5.6 do not meet the clear requirements of CAA sections 172(c)(5) and 173(c)(1) nor the federal implementing regulations in 40 CFR 51.165 and part 51, appendix S, section IV.D for offsets to come from areas with the same or higher attainment classifications and from areas that contribute to nonattainment in the area in which a source is locating.5 Additionally, as noted in the NPR, EPA proposed to disapprove the Delaware SIP revision because Delaware's regulations attempt to exercise authorities that are reserved solely for EPA in CAA section 107 by treating certain upwind areas as ozone nonattainment areas regardless of EPA's classification of those areas for attainment of the ozone NAAQS. EPA is required to fully consider a SIP revision submittal upon making a decision to approve or disapprove a SIP submittal revision. Here, EPA considered Delaware's submission but found the regulations clearly inconsistent with CAA requirements in part D of title I of the CAA for offset provisions. Regarding Delaware's comment about needing NSR to reach attainment, the CAA provides many tools to assist states with attaining and maintaining the NAAQS. EPA appreciates Delaware's in-state implementation efforts, and EPA will continue to work with other states to address interstate transport of emissions through SIPs and other federal programs.

Comment 7: Delaware asserted that EPA erroneously concluded that Delaware's revised regulation does not comply with the requirements in CAA sections 172(c)(5) and 173(c)(1) and the implementing regulations in 40 CFR 51.165 and part 51, appendix S. Delaware stated that CAA section 116 allows states to adopt rules that are not exactly the same as the federal regulations, as long as they are not less stringent. Delaware argues its regulations in 7 DNREC 1125, sections 2.5.5 and 2.5.6 are more stringent than EPA's requirements in CAA 172 and 173 and in the implementing regulations based on emission reductions, environmental outcomes, and environmentally beneficial economic growth. Delaware further asserted the actual application of its regulations for offsets results in greater reductions of criteria pollution than would be the case if EPA's rules were applied.

In agreement with Delaware's stringency assertions, New Jersey stated that EPA has no published guidance on procedures for demonstrating that state-specific provisions are at least as stringent as federal provisions. New Jersey asserts that a demonstration that the implementation of state provisions results in air quality benefit over a federal provision that is designed to ensure new source emissions are controlled, that more offsetting emissions reductions will be obtained, and that there will be more progress towards achievement of the NAAQS is a reasonable basis to conclude that the state provision is at least as stringent as the federal provisions.

Response 7: EPA disagrees that Delaware has established regulations in 7 DNREC 1125, sections 2.5.5 and 2.5.6 that are more stringent than the federal requirements for offsets in CAA section 173 and 40 CFR 51.165 based on the alleged greater emission reductions potential offered by Delaware's revisions. While EPA may not have specific guidance on procedures for demonstrating that state-specific provisions are at least as stringent as federal provisions, neither Delaware nor New Jersey provided a compelling argument as to why the changes in Delaware's emission offset provisions are more beneficial to air quality and more stringent. In summary, Delaware provided an example from applying the current federally required (SIP) offset requirements of a theoretical source which could locate in Delaware, where lowest achievable emission rate (LAER) applies, which would need to acquire emission offsets from local emitters at a high cost because offsets are scarce. Delaware posits that such a source might thus choose to locate instead in an attainment area in another state, which would presumptively not otherwise require LAER (and presumptively not require similar emission reductions as Delaware does) to avoid buying offsets and would then potentially contribute its emissions to Delaware's nonattainment. Under that scenario, Delaware foresees higher emission of ozone precursors to impact the State. Delaware claimed that under its revised regulation (7 DNREC 1125, sections 2.5.5 and 2.5.6)) such a source could still locate in Delaware, apply LAER resulting in lower emissions, and could obtain emission offsets from West Virginia at a much lower cost because emission offsets are more affordable per ton in some upwind states and Delaware asserts that EPA's 1997 ozone NAAQS modeling demonstrates that West Virginia emissions contribute to Delaware's nonattainment. Delaware relies on this example to support its argument that its revised regulation for offsets could produce greater reduction in ozone precursors and correspondingly be more stringent than federal requirements (because such a hypothetical source would apply LAER as well as buying offsets if locating in Delaware with this revised regulation versus locating outside Delaware and neither installing LAER nor purchasing offsets if federal rules for offsets were applied). While EPA acknowledges that Delaware's hypothetical example could plausibly result in the emissions reductions Delaware claims, Delaware has not provided any evidence, argument, or facts to support the contention that its revised regulation 7 DNREC 1125, as presently written, would consistently result in greater reductions impacting Delaware. It is equally plausible such sources could locate in Delaware and purchase offsets within Delaware providing greater reductions reducing ozone within Delaware as Delaware sources do impact the State most directly. See 80 FR 46271 (EPA's NODA). Delaware has not provided any evidence that its expanded offset program would always yield greater ozone reduction within the State versus reductions achieved from applying the federal offset requirements. While emissions reductions from offsets obtained from upwind sources pursuant to Delaware's revised regulation 7 DNREC 1125 may be equivalent in raw tons to offsets obtained within Delaware, Delaware provided no evidence that emission reductions from an upwind state would provide greater ozone reducing benefits within Delaware especially if offsets are obtained from upwind states a great distance from Delaware such as Wisconsin (a state included within the revised regulation).

EPA is required by CAA section 110(k) and (l) to evaluate proposed SIP revisions for compliance with the CAA and its implementing regulations. While states may adopt regulations that differ from federal requirements as long as they are as stringent per CAA section 116, Delaware made no such demonstration that its regulations are as stringent as EPA's requirements nor provide any greater ozone reducing benefit. In addition, Delaware's regulations at 7 DNREC 1125, sections 2.5.5 and 2.5.6 do not meet and are not equivalent to federal requirements for offsets. As discussed in detail in the NPR, Delaware's submittal does not on its face comport with the requirements of CAA sections 172(c)(5) and 173(c)(1) and the implementing regulations in 40 CFR 51.165 and part 51, appendix S. Delaware's regulations allow the acquisition of offsets from areas that may not be of the same or higher nonattainment status and may not be from areas found to contribute to a violation of the 2008 ozone NAAQS in Delaware.

Comment 8: Delaware stated its regulations allow the State to determine that offsets can be acquired in areas that EPA has previously determined significantly contribute to Delaware's nonattainment in modeling for CSAPR for the 1997 ozone standard, thus allowing economically-beneficial growth and additional reductions to out-of-state impacts on Delaware's air quality. Delaware asserted EPA's regulations for offsets deter environmentally beneficial economic growth in Delaware and result in more emissions impacts on Delaware.

Response 8: As stated previously in response to a prior comment, EPA's NSR program was designed to allow for responsible economic growth while at the same time allowing states to achieve and maintain the NAAQS. As stated in the NPR, Delaware's October 15, 2013 SIP revision seeks to expand the geographical area in which owners and operators of new or modified major stationary sources may obtain emissions offsets, regardless of the area's attainment classification for the ozone NAAQS and without specific requirements that the area “contribute to violation” of the ozone NAAQS in the area in which a new or modified source is locating or located. The contribution data calculated to support the promulgation of CSAPR evaluated whether emissions from an entire state, and from all source categories, would contribute to projected nonattainment in downwind states, but the air quality modeling did not separately evaluate contribution from nonattainment areas in upwind states to downwind air quality problems. Thus, regardless of the levels of contribution calculated from other states to air quality in Delaware, the State's regulations do not satisfy the minimum statutory criteria for demonstrating that emissions offsets (1) are obtained from another nonattainment area of equal or higher classification than the area in which the source is located, and (2) that emissions from such other nonattainment area contribute to a violation of the NAAQS in the nonattainment area where the new or modified source is locating or located. Moreover, contrary to Delaware's assertions, its regulations allow acquisition of offsets from more states than just states that Delaware contends contribute to ozone nonattainment in Delaware for the 1997 or 2008 ozone NAAQS based on modeling conducted to support CSAPR. Even if some of the states Delaware identified as contributing to its nonattainment for prior ozone NAAQS, Delaware's regulations allow acquisition of offsets from those states without requiring that the areas in which offsets may be attained in those states to have the same or higher attainment classification. In addition, the CSAPR modeling Delaware cites in its comments was conducted in 2011 and does not consider subsequent changes in emissions or contributions from sources in upwind states. As the modeling is not based on current emissions or contribution levels from other states, it cannot be used to meet the requirement for showing contribution to nonattainment in Delaware at the time a source would be seeking offsets for a NSR permit required under 7 DNREC 1125. EPA is disapproving this SIP revision for two reasons: (1) Delaware's emissions offset provision language does not comport with the specific requirements under CAA sections 172(c)(5) and 173(c)(1) or the federal implementing regulations in 40 CFR 51.165 and appendix S; and, (2) Delaware lacks legal authority to designate an area as nonattainment under CAA section 107(c) and (d). As stated previously, the economic impacts are not relevant to whether Delaware's regulations meet CAA requirements, and, thus, EPA provides no further response to that issue.

Comment 9: Delaware asserted that EPA incorrectly concluded that Delaware's SIP revision submittal did not include any information supporting Delaware's determination that emissions in the area specified in the regulation “contribute to a violation” for the 2008 ozone NAAQS. CAA section 173(c)(1) requires that all emissions offsets must come from an area which contributes to a violation of the NAAQS where the source seeking a permit is located. Delaware pointed to EPA modeling that supported the CSAPR for the 1997 ozone NAAQS of 80 ppb and in its evaluation asserted that there are minimal differences between the 1997 and 2008 ozone NAAQS modeling. Delaware claimed it evaluated EPA's 1997 modeling based on a threshold of 0.75 ppb, which is 1 percent of the 2008 ozone NAAQS. The State notes that the level of the ozone NAAQS standards have no bearing on the actual location of emissions and the movement of the air, concluding that the 1997 modeling is pertinent and reliable.

Response 9: EPA disagrees with Delaware's hybrid use of EPA's CSAPR modeling conducted to evaluate interstate transport for the 1997 ozone NAAQS to support its revised rule language in 7 DNREC 1125 sections 2.5.5 and 2.5.6. As discussed earlier, the CSAPR modeling for evaluating interstate transport with respect to the 1997 standard does not consider present-day, current emission levels or contributions from sources throughout the country. Moreover, the CSAPR modeling was also not completed for a source-specific situation where, among other things, a source needs to show that the particular emission offsets it is obtaining contribute to a violation of the NAAQS in the nonattainment area where the major new or modified source is currently seeking to locate. Thus, Delaware cannot rely on this older modeling which used emissions data prior to 2011 to support a “contribution” argument for a source seeking to use offsets for a NSR permit in the future. Finally, even if the CSAPR modeling data was a relevant metric by which to evaluate contribution for purposes of obtaining offsets, as noted above, the Delaware regulations do not constrain sources to only acquiring offsets from those states identified as impacting Delaware in the modeling analysis or otherwise comply with the statutory requirement that such offsets be obtained from an area with the same or higher attainment classification.

Accordingly, Delaware's reliance on EPA's CSAPR modeling is insufficient to support approval of its offset regulations, as the State does not take into account the complexities that a full modeling analysis requires to make the demonstration required by the statute; does not consider present day emissions and contributions from states where a potential new source may seek offsets; and, does not meet the CAA requirements for an owner or operator of a source requiring emission offsets as discussed in the NPR and previous response to comments.

Comment 10: Delaware believes EPA erroneously concluded that Delaware is trying to exercise authorities reserved for EPA under CAA section 107(c) and (d) by treating certain areas as ozone nonattainment areas regardless of EPA's classification of those states for attainment of the ozone NAAQS and is therefore disapproving the SIP revision because it's not in accordance with provisions of the CAA. Delaware asserted that EPA misinterpreted its actions because CAA section 107(c) and (d) are provisions in which EPA designates an area as nonattainment (in doing so imposing substantive nonattainment requirements on that area) and Delaware's revisions to its offset regulation do not impose any such planning requirements on any other state. According to Delaware, its regulations only identify “other areas as areas where Delaware sources can obtain emissions offsets, and which is the area that Delaware demonstrated is more stringent than the minimum area defined in the underlying federal requirements.”

Response 10: As noted in the NPR, EPA disagrees with Delaware's attempt to treat entire states as an area of equal or higher nonattainment classification for the ozone NAAQS, regardless of their designation by EPA under CAA section 107, in an effort to allow sources to obtain emission offsets from those states. Delaware's SIP revision submittal of 7 DNREC 1125 sections 2.5.5 and 2.5.6 does not meet the requirements in CAA section 173(c), 40 CFR 51.165(a)(3)(ii)(F) and appendix S, section IV.D.1, because the identified sections allow emissions offsets to be used from areas not designated by EPA pursuant to CAA section 107 as an area of equal or higher nonattainment classification for any ozone NAAQS and do not address contribution requirements in the CAA and its implementing regulations. In an attempt to broaden where sources can obtain emissions offsets, Delaware essentially created a large multi-state area in which sources locating in Delaware can automatically obtain emission offsets, without fully evaluating the impacts on air quality. This action circumvents the basic requirements of CAA section 173(c), 40 CFR 51.165(a)(3)(ii)(F) and appendix S, section IV.D.1. The use of emissions offsets under a state's NSR permit program should be evaluated on a case-by-case basis whereby the major new or modified source ensures that offsets obtained from one source, in a nonattainment area of equal or higher nonattainment classification, are actually contributing to a violation of the NAAQS in the nonattainment area where the major new or modified source is locating. Delaware's attempts to treat more states as nonattainment areas equal to Delaware's attainment classifications regardless of how EPA has designated these other states is not in accordance with the requirements of the CAA and the federal implementing regulations, as EPA stated previously. Delaware cannot avoid this improper exercise of designation authority under CAA 107 merely by saying its regulation treating areas as nonattainment does not impose SIP planning obligations on these other states. Thus, EPA disagrees with Delaware's argument it did not usurp authority under CAA 107 because Delaware's regulation attempts to exercise authorities that are reserved solely for EPA in CAA section 107 by treating certain upwind areas as ozone “nonattainment areas” to meet the requirement of “equal or higher nonattainment classification” for emission offset purposes regardless of EPA's classification of those areas for attainment of the ozone NAAQS.

Comment 11: Delaware asserted that the state areas specified in its revised regulation (7 DNREC 1125) are the primary cause of its ozone problem and there is no substantive difference between the areas indicated by Delaware and the areas EPA has designated as marginal nonattainment for ozone as those areas still contribute to Delaware's ozone issues. As an example, Delaware stated that EPA designated Queen Anne's County, Maryland, as “attainment/unclassifiable” rather than “moderate nonattainment” even though reductions in ozone precursors in that area would assist Delaware with attaining the NAAQS, because the area is directly upwind of Sussex County, Delaware. Delaware also stated that the only purpose of emission offsets is to reduce pollution that impacts the nonattainment area and that there is no practical reason not to accept reductions in these areas that directly impact and cause Delaware's nonattainment problem with ozone.

Response 11: EPA appreciates Delaware's interest in regulating sources in other states in order to meet the ozone NAAQS, so long as it is done in accordance with the CAA; however, this comment is not relevant to EPA's current action disapproving Delaware's October 15, 2013 SIP revision. CAA section 173(c) specifies offset requirements for owners and operators of new or modified major stationary sources. Specifically, section 173(c)(1) requires that: “the owner or operator of a new or modified major source may comply with any offset requirement in effect under this part for increased emissions of any air pollutant only by obtaining emission reductions of such air pollutant from the same source or other sources in the same nonattainment area, except that the State may allow the owner or operator of a source to obtain such emission reductions in another nonattainment area if (A) the other area has an equal or higher nonattainment classification than the area in which the source is located and (B) emissions from such other area contribute to a violation of the national ambient air quality standard in the nonattainment area in which the source is located (emphasis added).”

The CAA clearly establishes two separate criteria to permit a source to obtain offsets in “another nonattainment area.” Delaware's example of Queen Anne's County, Maryland, is inconsistent with the CAA as the County is not even “another nonattainment area”, much less a nonattainment area that “has an equal or higher nonattainment classification than the area in which the source is located.” Delaware and other states can allow owners and operators to obtain emissions offsets from any other nonattainment area, so long as the applicable CAA requirements are met. Delaware cannot authorize owners and operators of a source in the State to obtain emission offsets from any area where Delaware decides it would attain some emissions reduction benefit as it is in direct conflict with the clear requirements in the CAA.

Comment 12: Delaware questioned EPA's legal rationale that a disapproval of Delaware's SIP submission would not trigger a federal implementation plan (FIP) obligation. Delaware amended its Regulation 1125, effective September 11, 2013, by replacing Regulation 1125 section 2.5.5 and adding a sentence to section 2.5.6 to effectuate the modification to the offset provision. As the prior regulation which EPA had approved for the SIP is no longer in place, Delaware stated it did not understand EPA's legal rational to not issue a FIP.

Response 12: As previously noted in the NPR, under CAA section 179(a)(2), final disapproval pursuant to CAA section 110(k) of a submission that addresses a requirement of a part D plan (CAA sections 171-193), starts a sanction clock. Under CAA section 110(c)(1)(A), EPA also has an obligation to promulgate a FIP where EPA finds the SIP does not meet CAA criteria under CAA section 110(k)(1). Delaware's SIP revision addresses a part D Plan requirement for a NSR permitting program, but Delaware presently has a fully-approved NSR permit program in the approved Delaware SIP. See 77 FR 60053 (October 2, 2012). Even though Delaware's underlying State regulation is now different, the approved Delaware SIP contained in 40 CFR 52.420 still contains the previously-approved NSR program and will continue to do so until EPA approves a SIP revision either replacing the program or removing it without replacement (neither of which has occurred). Thus, at this time, there is no deficiency in Delaware's SIP with regards to NSR permitting, and Delaware's approved SIP continues to meet CAA NSR criteria. Therefore, as a result of this final action to disapprove Delaware's October 15, 2013 SIP revision, no sanctions under CAA section 179 will be triggered, and EPA has no obligation to promulgate a FIP under CAA section 110(c). As stated in the NPR, EPA expects Delaware to implement the EPA-approved NSR permitting program contained in the SIP, including the offsets requirements in the previously-approved version of Regulation 1125, and to revise its State provisions at section 2.0 of Regulation 1125 accordingly to address CAA 173(c)(1), 40 CFR 51.165, and part 51, appendix S, section IV.D for offsets.6

Comment 13: Multiple comments were made in support of Delaware's proposed SIP revision, urging EPA to approve Delaware's SIP revision submittal, noting that it would encourage upwind states to reduce their emissions and help states attain and maintain the federal 75 ppb ozone NAAQS.

Response 13: EPA appreciates the commenter's support for Delaware and the interest in improving air quality by reducing emissions from upwind states; however, all states are required to have regulations in place that meet the specific requirements of the CAA and federal implementing regulations, as noted in our responses to comments and in the NPR. EPA is disapproving Delaware's October 15, 2013 SIP revision submittal because it does not meet the requirements of the CAA and federal implementing regulations. Those requirements will not be restated here. See 80 FR 30015. While EPA appreciates Delaware's interest in securing upwind emission reductions, such concerns are not relevant to our review of Delaware's regulations regarding acquisition of offsets.

Comment 14: New Jersey asserted that expanding the geographical area for offsets is good for air quality as it encourages reductions in upwind emissions. New Jersey further noted that federal requirements for offsets encourage a transported pollution burden on downwind states to get worse and that new or modified major sources in New Jersey and Delaware are required to install controls that represent LAER technology and seek offsets from limited areas while sources in upwind states would not be held accountable for their pollution transported to downwind states. New Jersey asserted that EPA should allow sources to obtain offsets from upwind states that trigger nonattainment and the offset requirements in downwind states based on if the upwind state significantly contributes to the downwind nonattainment, giving New Jersey and Delaware a broader geographic area from which to obtain emissions offsets, while removing emissions offsets from being used by sources located in upwind states, making more offsets available for economic growth in New Jersey and Delaware.

Response 14: EPA appreciates New Jersey's comments and its interest in securing upwind reductions in ozone precursors as well as reductions in ozone precursors within New Jersey and Delaware. EPA has explained in the NPR and in prior responses to comment why Delaware's regulations for offsets do not meet federal NSR requirements in the CAA and its implementing regulations. While upwind reductions and additional availability of offsets within Delaware are important concerns, they are not relevant criteria for whether Delaware's regulations address CAA NSR requirements. Thus, EPA provides no further response to these comments.

Comment 15: New Jersey commented that current air monitoring data shows that New Jersey and Delaware are in nonattainment and/or have maintenance issues with the 75 ppb ozone NAAQS and New Jersey also has one site in the northern New Jersey multi-state nonattainment area that cannot attain the 84 ppb ozone NAAQS; therefore, New Jersey states it is imperative that downwind states be able to reduce the amount of offsets available in upwind states.

Response 15: EPA appreciates New Jersey's concern with attaining and maintaining old and new ozone NAAQS and has recently promulgated the CSAPR Update Rule specifically to address interstate transport with respect to the 2008 ozone NAAQS with tightened ozone-season NOX budgets designed to achieve emission reductions in upwind states. In response to New Jersey's concern with attaining and maintaining the ozone standards since publication of the NPR on May 26, 2015, we note that the Philadelphia Area is meeting the 2008 ozone NAAQS of 75 ppb with preliminary 2013-2015 AQM data showing a design value of 75 ppb. Additionally, on May 4, 2016, EPA made a final determination that the Seaford, DE marginal nonattainment area attained the 2008 ozone NAAQS by the applicable attainment date of July 20, 2015 with a design value of 74 ppb. See 81 FR 26701. EPA is working with the states to address transport of ozone pollution so downwind states can attain and maintain the ozone NAAQS.

Comment 16: DSCC referenced EPA's recently promulgated CSAPR, effective January 1, 2015, noting that Delaware is not considered an upwind contributor to downwind states, and, thus, is not even subject to CSAPR.

Response 16: EPA thanks DSCC for its comment with respect to CSAPR applicability. While DSCC's characterization of CSAPR applicability in Delaware may be accurate, this comment is not relevant to EPA's disapproval of Delaware's October 15, 2013 SIP revision submittal revising 7 DNREC 1125, sections 2.5.5 and 2.5.6. It is noted that while emission sources in Delaware are not subject to the requirements of CSAPR, the State of Delaware is expected to experience improved air quality as a result of its full implementation.

Comment 17: DSCC commented that, in 2008, EPA designated portions of Delaware as marginal nonattainment for ground-level ozone, which triggers nonattainment provisions of the CAA. DSCC claims Delaware is left with a requirement to attain, but no ability to regulate the out-of-state sources that cause its nonattainment problems.

Response 17: EPA agrees with DSCC's comment that in 2008 EPA designated portions of Delaware as marginal nonattainment for ozone, specifically as noted in the NPR disapproving Delaware's October 15, 2013 SIP submittal revising 7 DNREC 1125, sections 2.5.5 and 2.5.6 and again in these responses to comment. While EPA appreciates DSCC's concerns, such concerns are not relevant to our disapproval of Delaware's regulations regarding acquisition of offsets. Transport of ozone precursors from one state to another is being addressed by states and EPA under other provisions of the CAA.

Pursuant to CAA section 110(k)(3), EPA is disapproving Delaware's October 15, 2013 SIP revision consisting of revisions to DNREC's regulations related to nonattainment NSR preconstruction permit program requirements for emission offsets in the State of Delaware. Specifically, Delaware's revised Regulation 1125 which Delaware submitted as a SIP revision sought to expand the geographical area in which owners and operators of new or modified major stationary sources may obtain emissions offsets, regardless of the area's attainment classification for the ozone NAAQS and without specific requirements that the area “contribute to violation” of the ozone NAAQS in the area in which a new or modified source is locating or located. EPA is disapproving this SIP revision for two reasons: (1) Delaware's proposed emissions offset provision language does not comport with the specific requirements under CAA sections 172(c)(5) and 173(c)(1) or the federal implementing regulations in 40 CFR 51.165 and appendix S; and, (2) Delaware lacks legal authority to designate an area as nonattainment under CAA section 107(c) and (d).

Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, will result from this action.

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications, as specified in Executive Order 13175, because the SIP EPA is disapproving would not apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction, and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only 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 impose additional requirements beyond those imposed by state law.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.

The EPA lacks the discretionary authority to address environmental justice in this rulemaking.

This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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 pertaining to disapproval of the Air Quality Management portion of Delaware's Administrative Code, which revises the regulations related to nonattainment NSR preconstruction permit program requirements for emission offsets may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

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-2016-0325 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-2016-0325, 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.

In the Federal Register of July 20, 2016 (81 FR 47150) (FRL-9948-45), 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# 6F8451) by SePRO Corporation, 11550 North Meridian Street, Suite 600, Carmel, IN 46032. The petition requested that 40 CFR part 180 be amended by establishing a tolerance for residues of the herbicide fluridone in or on cotton, gin byproducts at 0.1 ppm. That document referenced a summary of the petition prepared SePRO, the registrant, which is available in the docket EPA-HQ-OPP-2016-0325 at http://www.regulations.gov. No comments were received in response to the notice of filing.

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), 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 fluridone in or on cotton gin byproducts, consistent with FFDCA section 408(b)(2).

In the Federal Register of February 17, 2016 (81 FR 7982) (FRL-9941-69), EPA established a tolerance for residues of fluridone in or on cotton, undelinted seed. EPA is relying upon the risk assessments that supported the findings made in the February 17, 2016 Federal Register document in support of this action. The toxicity profile of fluridone has not changed, and the previous risk assessments that supported the establishment of that tolerance remain valid.

For the February 17, 2016 action, the petitioner did not propose a tolerance for residues of fluridone on cotton gin byproducts, however, the Agency determined that a cotton gin byproduct tolerance was needed to cover the cotton raw agricultural commodities (RAC). The commodity “cotton gin byproducts” was included in the risk assessments that supported the February 17, 2016 Final Rule, but because they were not proposed by the registrant, they could not be established at that time. The registrant has subsequently proposed the cotton gin byproducts tolerance and therefore, the tolerance can now be established.

EPA concludes that the aggregate exposure and risk estimates presented in the most recent human health risk assessment document, which were not of concern to the Agency, adequately account for exposures and risk resulting from all fluridone uses including cotton gin byproducts.

Therefore, EPA relies upon the findings made in the February 17, 2016, Federal Register document in support of this rule. 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 fluridone residues.

For a detailed discussion of the aggregate risk assessments and determination of safety for these tolerances, please refer to the February 17, 2016, Federal Register document and its supporting documents, available at http://www.regulations.gov in docket ID number EPA-HQ-OPP-2014-0913.

Adequate enforcement methodology high performance liquid chromatography (HPLC) method (originally submitted as method AM-AA-CA-RO52-AA-755) is available in the Pesticide Analytical Manual (PAM) Volume II for residues of fluridone in plant commodities.

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.

There is no Codex MRL for fluridone residues in or on cotton.

Therefore, a tolerance is established for residues of fluridone, 1-methyl-3-phenyl-5-(3-(trifluoromethyl)phenyl)-4(1H)-pyridinone, in or on cotton, gin byproducts at 0.1 ppm.

This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 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 tolerances 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).

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).

Therefore, 40 CFR chapter I is amended as follows:

I. Background

On November 2, 2015, the President signed the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act), passed as part of the Bipartisan Budget Act of 2015, Public Law 114-74, 129 Stat. 599. The 2015 Act further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (1990 Act), Public Law 101-410, 104 Stat. 890 (codified as amended at 28 U.S.C. 2461 note), as previously amended by the Debt Collection Improvement Act of 1996 (1996 Act), Public Law 104-134, 110 Stat. 1321, in order to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect.1

The 1996 Act required each federal agency to adopt regulations at least once every four years that adjust for inflation the maximum amount of civil monetary penalties under the statutes administered by the agency. In accordance with the 1996 Act, the Board increased its existing civil monetary penalties, which had not been adjusted for inflation since they were prescribed in the ICC Termination Act of 1995 (ICCTA), Public Law 104-88, 109 Stat. 803, by 10%, through a final rule issued in the main docket of this proceeding on October 22, 2012.

The 2015 Act requires agencies to adjust their civil monetary penalties for inflation through an initial “catch-up adjustment.” 2 The 2015 Act requires that this adjustment be issued through an interim final rulemaking and sets forth a specific methodology to calculate the adjustment. To arrive at the adjusted penalty, the agency must multiply the penalty amount when it was established or last adjusted by Congress, excluding adjustments under the 1990 Act, by a multiplier that is based on the percent change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October in the year the penalty amount was established or last adjusted by Congress, and the October 2015 CPI-U.3 As mandated by statute, penalty level adjustments should be rounded to the nearest dollar, and the initial increase of penalties shall not exceed 150%.

Following the catch-up adjustment, the 2015 Act then directs agencies to adjust their civil penalties for inflation annually, beginning on January 15, 2017, and no later than January 15 of every year thereafter. Annual inflation adjustments will be based on the percent change between the October CPI-U preceding the date of the adjustment and the prior year's October CPI-U. As with the catch-up adjustment, penalty level adjustments should be rounded to the nearest dollar.

The statutory definition of civil monetary penalty covers the civil penalty provisions under the Rail Carrier (Part A), Motor and Water Carriers (Part B), and Pipeline Carrier (Part C) provisions of the Interstate Commerce Act, as amended by ICCTA. The Board's civil (and criminal) penalty authority related to rail transportation appears at 49 U.S.C. 11901-11908.

The Board's penalty authority related to motor carriers, water carriers, brokers, and freight forwarders appears at 49 U.S.C. 14901-14915. The Board's penalty authority related to pipeline carriers appears at 49 U.S.C. 16101-16106.4

As set forth in this interim final rule, the Board is amending 49 CFR pt. 1022 so that its regulations and civil monetary penalties conform to the requirements of the 2015 Act. The adjusted penalties set forth in the rule will apply only to violations which occur after the effective date of this regulation.

The interim final rule is set forth at the end of this decision. This interim final rule is issued without prior public notice or opportunity for public comment. The Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), does not require that process “when the agency for good cause finds” that public notice and comment are “unnecessary.” Here, Congress has mandated that the agency make the catch-up inflation adjustment through an interim final rule. The Board has no discretion to set alternative levels of adjusted civil monetary penalties, because the amount of the inflation adjustment must be calculated in accordance with the statutory formula. The Board simply determines the amount of inflation adjustments by performing technical, ministerial computations. Because the Board has no discretion to do anything except promulgate the rule and perform ministerial computations to apply it, public comment would serve no useful purpose. Accordingly, the Board has determined that there is good cause to promulgate this rule without soliciting public comment and to make this regulation effective immediately upon publication.

The following chart shows the relevant statutory provision and penalty description, the baseline penalty, the values used in the calculations, the relevant cap imposed by the 2015 Act for the catch-up adjustment,5 and the rounded catch-up adjustment.

The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 801 et seq., generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Because the Board has determined that notice and comment are not required under the APA for this rulemaking, the requirements of the RFA do not apply.

This interim final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995, 44 U.S.C. 3501 et seq.

It is ordered:

1. The Board amends its rules as set forth in this decision. Notice of the interim final rule will be published in the Federal Register.

2. This decision is effective on its date of service.

For the reasons set forth in the preamble, part 1022 of title 49, chapter X, of the Code of Federal Regulations is amended as follows:

Background

On July 15, 2013, we received a petition from WildEarth Guardians to list 81 marine species or subpopulations as threatened or endangered under the ESA. This petition included species from many different taxonomic groups, and we prepared our 90-day findings in batches by taxonomic group. We found that the petitioned actions may be warranted for 24 of the species and 3 of the subpopulations and announced the initiation of status reviews for each of the 24 species and 3 subpopulations (78 FR 63941, October 25, 2013; 78 FR 66675, November 6, 2013; 78 FR 69376, November 19, 2013; 79 FR 9880, February 21, 2014; and 79 FR 10104, February 24, 2014). On September 23, 2015, we published a proposed rule to list the gulf grouper (Mycteroperca jordani) as an endangered species and the island grouper (Mycteroperca fusca) as a threatened species (80 FR 57314). We requested public comment on the information in the draft status review and proposed rule, and the comment period was open through November 23, 2015. This final rule provides a discussion of the information we received during the public comment period and our final determinations on the petition to list the gulf grouper and island grouper under the ESA. The status of the findings and relevant Federal Register notices for the other 22 species and 3 subpopulations can be found on our Web site at http://www.nmfs.noaa.gov/pr/species/petition81.htm.

We are responsible for determining whether species are threatened or endangered under the ESA (16 U.S.C. 1531 et seq.). To make this determination, we first consider whether a group of organisms constitutes a “species” under the ESA, then whether the status of the species qualifies it for listing as either threatened or endangered. Section 3 of the ESA defines a “species” to include “any subspecies of fish or wildlife or plants, and any distinct population segment of any species of vertebrate fish or wildlife which interbreeds when mature.”

Section 3 of the ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” We interpret an endangered species to be one that is presently in danger of extinction. A threatened species, on the other hand, is not presently in danger of extinction, but is likely to become so in the foreseeable future (that is, at a later time). In other words, the primary statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or in the foreseeable future (threatened).

Section 4(a)(1) of the ESA requires us to determine whether any species is endangered or threatened due to any one or a combination of the following five threat factors: The present or threatened destruction, modification, or curtailment of its habitat or range; overutilization for commercial, recreational, scientific, or educational purposes; disease or predation; the inadequacy of existing regulatory mechanisms; or other natural or manmade factors affecting its continued existence. We are also required to make listing determinations based solely on the best scientific and commercial data available, after conducting a review of the species' status and after taking into account efforts being made by any State or foreign nation to protect the species.

In making a listing determination, we first determine whether a petitioned species meets the ESA definition of a “species.” Next, using the best available information gathered during the status review for the species, we complete a status and extinction risk assessment. In assessing extinction risk for these two grouper species, we considered the demographic viability factors developed by McElhany et al. (2000). The approach of considering demographic risk factors to help frame the consideration of extinction risk has been used in many of our status reviews, including for Pacific salmonids, Pacific hake, walleye pollock, Pacific cod, Puget Sound rockfishes, Pacific herring, scalloped hammerhead sharks, and black abalone (see http://www.nmfs.noaa.gov/pr/species/ for links to these reviews). In this approach, the collective condition of individual populations is considered at the species level according to four viable population descriptors: Abundance, growth rate/productivity, spatial structure/connectivity, and diversity. These viable population descriptors reflect concepts that are well-founded in conservation biology and that individually and collectively provide strong indicators of extinction risk (NMFS 2015).

We then assess efforts being made to protect the species to determine if these conservation efforts are adequate to mitigate the existing threats. Section 4(b)(1)(A) of the ESA requires the Secretary, when making a listing determination for a species, to take into consideration those efforts, if any, being made by any State or foreign nation to protect the species.

In response to our request for comments on the proposed rule, we received comments from eight parties. All commenters presented general information on threats or provided data that were already cited, discussed, and considered in the draft status review reports (Dennis 2015; Salz 2015) or the proposed rule (80 FR 57314; September 23, 2015). Summaries of the substantive public comments received, and our responses, are provided below, with references to our prior documents where relevant.

Comment 1: One commenter noted that WildEarth Guardians had submitted the petition to list these two grouper species and wondered at what level we involved WildEarth Guardians or other organizations in the process of making the assessment.

Response: WildEarth Guardians did not have any role in evaluating the status of the two grouper species under the ESA beyond providing us with the information in its petition.

Comment 2: Most commenters expressed support for the proposed rule, though several recommended we consider economic and social impacts on the tourism and fishing industries when determining what is restricted and prohibited or when developing recovery plans. One of these commenters noted that U.S. fishing companies will suffer if the gulf grouper is listed as endangered under the ESA because Mexico will not have regulations and laws for bycatch prevention devices and Mexican fishers do not have to abide by the ESA. And another commenter suggested allowing small amounts of sustainable yield to support those industries dependent on these two groupers.

Response: The ESA requires us to base our listing determinations solely on the best available scientific and commercial information. We may not consider economic or social impacts in making these determinations. When a species is listed as endangered, the ESA section 9 prohibitions are automatically extended to that species. The gulf grouper is listed as endangered, and therefore, it is a violation for anybody subject to U.S. jurisdiction to harvest this species in U.S. waters or on the high seas.

Therefore, we cannot authorize even small amounts of harvest of this species to support the fishing industry. However, when a species is listed as threatened, section 9 prohibitions are not automatically extended to that species. In this case, we have not extended any section 9 prohibitions to the threatened island grouper, so there is no prohibition against harvesting them. However, any Federal agency that funds, authorizes, or carries out an action that may affect an ESA listed species must consult with us under section 7 of the ESA to ensure that the action is not likely to jeopardize the continued existence of any species listed under the ESA.

Comment 3: One commenter asserted that Mexico has an 8,000 km2 area where gill nets are illegal, but more efforts are needed to protect the two grouper species.

Response: Although we have no authority with respect to how other countries manage species within their territories, we encourage Spain, Portugal, and Mexico to provide for the conservation of these species that are found in their waters.

Comment 4: One commenter stated that he understood the need to protect these grouper species, but he asserted that ESA protection will not have the protective effect NMFS is seeking, especially for the gulf grouper. This commenter noted that the gulf grouper has limited habitat, the habitat is threatened by dams, and ESA listing will not help. The commenter suggested that NMFS consider public outreach to bring attention to the many problems dams cause.

Response: While it is true that fewer protections apply under the ESA for foreign species, important protections do apply. All persons subject to the jurisdiction of the United States (including its citizens) must comply with section 9 of the ESA, which, among other things, makes it unlawful to import endangered species into the United States or to export them from the United States, or to “take” endangered species within the territorial sea of the United States or upon the high seas (16 U.S.C. 1538(a)(1)(A)-(C)). Also, any Federal agency that funds, authorizes, or carries out an action that may affect an ESA listed species must consult with us under section 7 of the ESA to ensure that the action is not likely to jeopardize the continued existence of any species listed under the ESA. In addition, listing provides important educational benefits by informing the public about the plight of these species and promotes conservation actions by Federal and State agencies, foreign entities, private groups, and individuals.

Comment 5: One commenter wondered why NMFS was listing the island grouper, which is a foreign species. The commenter noted that ESA listing would have no legal impact, and it would be better to impose a ≥700mm size limit for these two grouper species.

Response: Section 4 of the ESA requires that we list any species that we determine to be endangered or threatened, whether it occurs within the United States or elsewhere. Demonstrating a need to secure particular protections under the other sections of the ESA, or that such protections will be afforded where the species is found, is not a precondition to listing. As we noted in our response to Comment 3, although we have no authority with respect to how other countries manage species within their territories, we encourage Spain, Portugal, and Mexico to provide for the conservation of these species that are found in their waters. Please see our response to Comment 4 for a summary of protections that will apply to the endangered gulf grouper and threatened island grouper.

Comment 6: One commenter stated that it would be helpful if other countries would realize that the imminent threats of tidal power, desalination, commercial fishing, and waste runoff are big factors in the degradation and loss of habitat for these grouper species and that they would follow through to begin addressing these issues and help bring these groupers back to viable numbers.

Response: Again, although we have no authority with respect to how other countries manage species within their territories, we encourage Spain, Portugal, and Mexico to provide for the conservation of these species that are found in their waters.

Comment 7: One commenter suggested a campaign to increase recreational scuba diving aimed at hunting lionfish for sport, feeding them to the gulf grouper, and serving them at restaurants as an effective tool for conserving gulf grouper (and lionfish eradication), as this has been successful in helping eradicate lionfish in the Caribbean.

Response: We appreciate the commenter's suggestion, but this is beyond the scope of our final rule.

We did not receive, nor did we find, scientific data from references that were not previously included in the draft status review reports (Dennis 2015; Salz 2015) and proposed rule (80 FR 57314; September 23, 2015). We incorporate, as appropriate, relevant information received as communications during the public comment process.

However, this information does not present significant new findings that change any of our proposed listing determinations.

Status reviews for the gulf grouper and the island grouper were conducted by NMFS OPR staff and an in-house contractor. In order to complete the status reviews, we compiled information on the species' biology, ecology, life history, threats, and conservation status from information contained in the petition, our files, a comprehensive literature search, and consultation with experts. Prior to publication of the proposed rule, the status review reports were subjected to peer review. Peer reviewer comments are available at http://www.cio.noaa.gov/services_programs/prplans/PRsummaries.html.

The status review reports provide a thorough discussion of the life history, demographic risks, and threats to the two grouper species. We considered all identified threats, both individually and cumulatively, to determine whether these grouper species respond in a way that causes actual impacts at the species level. The collective condition of individual populations was also considered at the species level, according to the four viable population descriptors discussed above.

The proposed rule (80 FR 57314; September 23, 2015) summarizes general background information on the description, reproductive biology and spawning behavior, population structure, distribution, abundance, and habitat of the gulf grouper and island grouper. All of that information is incorporated herein.

Based on the best available scientific and commercial information described or referenced above, and included in the status review reports, and as stated in the proposed rule (80 FR 57314; September 23, 2015), we have determined that the gulf grouper (Mycteroperca jordani) and the island grouper (Mycteroperca fusca) are taxonomically-distinct species and therefore meet the definition of “species” pursuant to section 3 of the ESA and are eligible for listing under the ESA.

Next we consider whether any one or a combination of the five threat factors specified in section 4(a)(1) of the ESA contribute to the extinction risk of these species. The comments that we received on the proposed rule did not change our conclusions regarding any of the section 4(a)(1) factors or their interactions for these species. In fact, the comments lend further support to our conclusion that the threats of overutilization and inadequacy of existing regulatory mechanisms are contributing significantly to the risk of extinction for both Mycteroperca species. Therefore, we incorporate herein all information, discussion, and conclusions on the summary of factors affecting the two grouper species in the status review reports (Dennis 2015; Salz 2015) and proposed rule (80 FR 57314; September 23, 2015).

None of the comments we received from public comment on the proposed rule affected our extinction risk evaluations of these two grouper species. Our evaluations and conclusions regarding extinction risk for these species remain the same. Therefore, we incorporate herein all information, discussion, and conclusions on the extinction risk of the two grouper species in the status review reports (Dennis 2015; Salz 2015) and proposed rule (80 FR 57314; September 23, 2015).

Finally, we considered conservation efforts to protect both species and evaluated whether these conservation efforts are adequate to mitigate the existing threats to the point where extinction risk is significantly lowered and the species' status is improved. None of the information we received from public comment on the proposed rule affected our conclusions regarding conservation efforts to protect the two grouper species. We incorporate herein all information, discussion, and conclusions on the protective efforts for the two grouper species in the status review reports (Dennis 2015; Salz 2015) and proposed rule (80 FR 57314; September 23, 2015).

We have reviewed the best available scientific and commercial information, including the petition, the information in the status review reports (Dennis 2015; Salz 2015), the comments of peer reviewers, and public comments. Following are summaries of our listing determinations for these two species.

Based on the best available scientific and commercial information, as summarized here, in our proposed rule (80 FR 57314; September 23, 2015), and in Dennis (2015), and consideration of protective efforts being made to protect the species, we find that the gulf grouper (Mycteroperca jordani) is at a high risk of extinction. The gulf grouper was once considered abundant, and now it is rare (Jenkins and Evermann 1889, Croker 1937, and Sáenz-Arroyo et al. 2005a). Direct harvest is the major reason for gulf grouper decline (Sala et al. 2004, Sáenz-Arroyo et al. 2005a, Aburto-Oropeza et al. 2008) and, due to the lack of protective regulations in Mexico (no meaningful quotas nor protective regulations for gulf grouper), there is no reason to expect fishing to be a diminishing threat.

Moreover, gulf grouper are intrinsically vulnerable to overfishing due to life history traits, including large size, late onset of reproductive maturity, protogynous hermaphrodite life history, transient aggregate spawning, slow growth rate, long life-span, and restricted geographic range (Sadovy de Mitcheson et al. 2012). Based on the best available information, we find that the gulf grouper is in danger of extinction throughout its range. After considering efforts being made to protect this species, we could not conclude that the existing or proposed conservation efforts would alter its extinction risk. We therefore list it as endangered under the ESA.

Based on the best available scientific and commercial information, as summarized here, in our proposed rule (80 FR 57314; September 23, 2015), and in Salz (2015), and consideration of protective efforts being made to protect the species, we find that the island grouper (Mycteroperca fusca) is at a moderate risk of extinction. The nature of the threats and demographic risks identified, taking into account the uncertainty associated with the threats and risks, does not demonstrate the species is presently in danger of extinction; and therefore, it does not meet the definition of an endangered species.

However, the current threats to island grouper from fishing overutilization and inadequate regulatory mechanisms are likely to continue in the future, further exacerbating the demographic risk factors associated with abundance, growth rate and productivity, and spatial structure and connectivity. We conclude that both the species' current risk of extinction and the best available information on the extent of, and trends in, the major threats affecting this species make it likely this species will become an endangered species within the foreseeable future (defined as 40 years, as explained in the proposed rule (80 FR 57314; September 23, 2015)) throughout its range. We therefore list it as threatened under the ESA.

Conservation measures provided for species listed as endangered or threatened under the ESA include recovery actions (16 U.S.C. 1533(f)); Federal agency requirements to consult with NMFS under section 7 of the ESA to ensure their actions do not jeopardize the species or result in adverse modification or destruction of critical habitat should it be designated (16 U.S.C. 1536); designation of critical habitat if prudent and determinable (16 U.S.C. 1533(a)(3)(A)); and prohibitions on taking (16 U.S.C. 1538). In addition, recognition of the species' plight through listing promotes conservation actions by Federal and State agencies, foreign entities, private groups, and individuals. Because the ranges of these two species are entirely outside U.S. jurisdiction, the main effects of this final rule are the prohibitions on take, including export and import, of the endangered gulf grouper.

Section 7(a)(2) (16 U.S.C. 1536(a)(2)) of the ESA and NMFS/USFWS regulations require Federal agencies to consult with us to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of listed species or destroy or adversely modify critical habitat. It is unlikely that the listing of these species under the ESA will increase the number of section 7 consultations, because these species occur entirely outside of the United States and are unlikely to be affected by Federal actions. Although the gulf grouper's historical range includes parts of Southern California, there are no recent records indicating that this species still exists in U.S. waters.

Critical habitat is defined in section 3 of the ESA (16 U.S.C. 1532(5)) as: (1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (a) essential to the conservation of the species and (b) that may require special management considerations or protection; and (2) specific areas outside the geographical area occupied by a species at the time it is listed upon a determination that such areas are essential for the conservation of the species. Our regulations at 50 CFR 424.12(b) specify that the Secretary will identify, at a scale determined by the Secretary to be appropriate, specific areas outside the geographical area occupied by the species that are essential for its conservation, considering the life history, status, and conservation needs of the species based on the best available scientific data. Section 4(a)(3)(A) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires that, to the extent prudent and determinable, critical habitat be designated concurrently with the listing of a species. However, critical habitat shall not be designated in foreign countries or other areas outside U.S. jurisdiction (50 CFR 424.12(g)).

The best available scientific and commercial information as discussed above, the status review reports (Dennis 2015; Salz 2015), and the proposed rule (80 FR 57314; September 23, 2015) does not indicate that U.S. waters provide any specific essential biological or physical function for the gulf grouper. U.S. waters account for a very small portion on the northern limit of the gulf grouper's historical range, and may no longer be part of the species' current range. Based on the best available information, we have not identified unoccupied areas in U.S. waters that are currently essential to the conservation of gulf grouper. Therefore, based on the available information, we do not intend to designate critical habitat for the gulf grouper.

The island grouper occurs entirely outside of the United States. Therefore, we cannot designate critical habitat for island grouper.

On July 1, 1994, NMFS and FWS published a policy (59 FR 34272) that requires us to identify, to the maximum extent practicable at the time a species is listed, those activities that would or would not likely constitute a violation of section 9 of the ESA. Because we are listing Mycteroperca jordani as endangered, all of the prohibitions of section 9(a)(1) of the ESA will apply to this species. These include prohibitions against the import, export, interstate or foreign trade (including delivery, receipt, carriage, shipment, transport, sale and offering for sale), and “take” of these species. These prohibitions apply to all persons subject to the jurisdiction of the United States, including in the United States, its territorial sea, or on the high seas. Take is defined as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” The intent of this policy is to increase public awareness of the effects of this listing on proposed and ongoing activities within the species' ranges. Activities that we believe could (subject to the exemptions set forth in 16 U.S.C. 1539) result in a violation of section 9 prohibitions for the endangered gulf grouper include, but are not limited to, the following:

(1) Possessing, delivering, transporting, or shipping any individual or part (dead or alive) taken in violation of section 9(a)(1);

(2) Delivering, receiving, carrying, transporting, or shipping in interstate or foreign commerce any individual or part, in the course of a commercial activity;

(3) Selling or offering for sale in interstate or foreign commerce any individual or part, except antique articles at least 100 years old; and

(4) Importing or exporting gulf grouper or any part of this species.

We emphasize that whether a particular activity constitutes a violation is entirely dependent upon the facts and circumstances of each incident. Further, an activity not listed above may in fact constitute a violation.

Although the determination of whether any given activity constitutes a violation is fact dependent, we consider the following actions, depending on the circumstances, as being unlikely to violate the prohibitions in ESA section 9 with regard to M. jordani: (1) Take authorized by, and carried out in accordance with the terms and conditions of, an ESA section 10(a)(1)(A) permit issued by NMFS for purposes of scientific research or the enhancement of the propagation or survival of the species; and (2) continued possession of parts that were in possession at the time of listing. Such parts may be non-commercially exported or imported; however the importer or exporter must be able to provide evidence to show that the parts meet the criteria of ESA section 9(b)(1) (i.e., held in a controlled environment at the time of listing, in a non-commercial activity).

Section 11(f) of the ESA gives NMFS authority to promulgate regulations that may be appropriate to enforce the ESA. We may promulgate future regulations to regulate trade or holding of gulf grouper, if necessary. We will provide the public with the opportunity to comment on future proposed regulations.

We are listing the island grouper as a threatened species. In the case of threatened species, ESA section 4(d) leaves it to the Secretary's discretion whether, and to what extent, to extend the section 9(a) “take” prohibitions to the species, and authorizes us to issue regulations necessary and advisable for the conservation of the species. Thus, we have flexibility under section 4(d) to tailor protective regulations, taking into account the effectiveness of available conservation measures. The 4(d) protective regulations may prohibit, with respect to threatened species, some or all of the acts which section 9(a) of the ESA prohibits with respect to endangered species. These 9(a) prohibitions apply to all individuals, organizations, and agencies subject to U.S. jurisdiction.

Because the island grouper occurs entirely outside of the United States, and is not commercially traded with the United States, extending the section 9(a) “take” prohibitions to this species will not result in added conservation benefits or species protection. Therefore, we do not intend to issue section 4(d) regulations for the island grouper.

A complete list of the references used in this final rule is available upon request (see ADDRESSES).

The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in Pacific Legal Foundation v. Andrus, 675 F.2d 825 (6th Cir. 1981), NMFS has concluded that ESA listing actions are not subject to the environmental assessment requirements of the National Environmental Policy Act (NEPA).

As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, this final rule is exempt from review under Executive Order 12866 and the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. This final rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.

In accordance with E.O. 13132, we determined that this final rule does not have significant Federalism effects and that a Federalism assessment is not required.

For the reasons set out in the preamble, 50 CFR parts 223 and 224 are amended as follows: